Should Congress Declare War on al Qaeda?

Testifying before Congress today, Attorney General Michael Mukasey urged Congress to formally declare war on al Qaeda. Appearing to provide testimony about pending legislation concerning the decision in the Boumediene case that detainees in Guantanamo Bay do have habeas rights, Mukasey argued that the legislation should:

prohibit courts from ordering a detainee to be released within the United States, protect secrets in court hearings, ensure that soldiers are not taken from the battlefield to testify and prevent challenges from delaying detainee trials,

In addition, he said, "Any legislation should acknowledge again and explicitly that this nation remains engaged in an armed conflict with al Qaeda, the Taliban and associated organizations, who have already proclaimed themselves at war with us."

"Congress should reaffirm that for the duration of the conflict the United States may detain as enemy combatants those who have engaged in hostilities or purposefully supported al Qaeda," and related groups, he said.

As readers of this blog, I have long argued that the congressional power to declare war is about the legal status of individuals under the jurisdiction of US law, rather than the power to deploy troops and initial hostilities, and Mukasey's request fits along that opinion.

However, it would be disastrous if Congress declared war. Fortunately, it's hard to imagine Congress doing so, especially as the Bush presidency comes to an end. But, if Congress agrees with Mukasey and does declare war, Bush would be placed at the absolute zenith of presidential power. Declarations of war are tools by which Congress recognizes the grave danger faced by the nation and expands presidential power to meet that threat. The expanded power enjoyed by the president under a formal declaration of war is, in essence, the power to legislate normally possessed by Congress. Thus, under a declaration of war, presidents are able to intern US citizens, seize domestic industry, censor the press, and take similar actions of a legislative nature. Clearly, these are the kinds of powers Mukasey has in mind, as he seeks stronger powers to detain, investigate, and try those suspected of involvement in international terrorism.

And that is why Congress should not declare war. Reasonable people can and do debate over the nature of the threat posed to the US by al Qaeda. But al Qaeda does not threaten to destroy the United States, and has not even be able to mount a successful attack against the US since 2001. While the threat may very well be serious, and may even be the most serious threat faced by the US today, it does not justify giving such broad powers to the president. True, the administration has faced several setbacks in its efforts to combat al Qaeda at the hands of the Supreme Court, which very well may hurt those efforts. But cutting the Court out of the process by getting a declaration of war is not the answer. Rather, the Bush Administration should consult more with Congress to get legislative backing for its policies.

Is the War in Iraq Over?

If you're not familiar with the work of Michael Yon, you should be. He is an independent reporter who has spent more time in Iraq than any other journalist, and most of that time he has been embedded with various military units. According to Yon:

barring any major and unexpected developments (like an Israeli air strike on Iran and the retaliations that would follow), a fair-minded person could say with reasonable certainty that the war has ended. A new and better nation is growing legs. What's left is messy politics that likely will be punctuated by low-level violence and the occasional spectacular attack. Yet, the will of the Iraqi people has changed, and the Iraqi military has dramatically improved, so those spectacular attacks are diminishing along with the regular violence. Now it's time to rebuild the country, and create a pluralistic, stable and peaceful Iraq. That will be long, hard work. But by my estimation, the Iraq War is over. We won. Which means the Iraqi people won.

Yon also provides statistics to back up his claim (they can be found here in a PowerPoint file). The statistics are amazing to look at, as are the trends. Michael Totten summarizes them over at Commentary:

Security incidents, or attacks, are at their lowest level in four years. Civilian deaths are down by almost 90 percent since General Petraeus’ counterinsurgency “surge” strategy went into effect. High profile attacks, or explosions, are down by 80 percent in the same time period. American and Iraqi soldiers suffer far fewer casualties than they have for years. Ethno-sectarian deaths from Iraq’s civil war plunged all the way down to zero in May and June 2008.

Reports from all over Iraq indicate that al Qaeda is all but defeated, and the US Embassy in Iraq recently reported that Iraq has met 15 of the 18 benchmarks established by Congress. According to the report:

the only remaining shortfalls were the Baghdad government's failure to enact and implement laws governing the oil industry and the disarmament of militia and insurgent groups, and continuing problems with the professionalism of the Iraqi police. All other goals -- including preparations for upcoming elections, reform of de-Baathification and disarmament laws, progress on enacting and spending Iraq's budget, and the capabilities of the Iraqi army -- were rated "satisfactory."

The GAO has disagreed with this report, stating that there has been "little improvement in the political and economic spheres and noted continuing military problems despite a significant decline in overall violence." Still, the significant decline in violence is astounding. The embassy report stated that:

the Iraqi parliament has passed significant legislation on de-Baathification reform, the division of powers between the central and provincial governments, and amnesty for former insurgents. It grades progress in all of those areas as newly "satisfactory" even as it acknowledges that the laws in most cases have been implemented slowly, if at all. Congress mandated that Iraq both "enact and implement" the benchmark laws.

The embassy cited progress toward increasing the number of Iraqi security force units capable of independent operations. Although it says that the overall number of units that can operate independently has increased "marginally," it concludes that "70% of all formed units can now conduct [counter-insurgency] operations with or without Coalition support."

This is not to say that there won't be more deaths, either of US soldiers or Iraqis. But if al Qaeda has in fact been defeated, and the Iraqi government is stabilizing, there may in fact be a light at the end of the tunnel.

Dark Days for Darfur

Things are getting much, more worse for Darfur lately. Last week, a convoy of UN peacekeepers was ambushed by 200 gunmen on horseback and in SUVs. Seven peacekeepers were killed, and 22 wounded in the attack, which reinforces the argument that peacekeeping forces are inappropriate and ill-suited for a conflict which has not been resolved. Peacekeeping forces normally are introduced into conflict situations that have ended by agreement of all warring parties but who do not trust one another to keep the peace. Thus, a neutral third party interposes itself between the sides, guaranteeing that each side will adhere to its commitments. But Darfur is not a settled conflict. The central government in Khartoum is still conducting its raids, the janjaweed continue to raid refugee camps, and the Darfuri rebels are still fighting back, even having attacked peacekeepers in the past.

As if the situation isn't bad enough, it's like to get much worse in the near future. Today, the International Criminal Court announced that its prosecutor has requested an arrest warrant for Sudanese president Omar Hassan al-Bashir on three counts of genocide, five of crimes against humanity and two of murder. While it will be months before the ICC to rule on the application, but if the warrant is issued, President al-Bashir will "effectively turn al-Bashir into a prisoner in his own country. In the past, Interpol has issued so-called Red Notices for fugitives wanted by the court, meaning they should be arrested any time they attempt to cross an international border."

But even if the warrant isn't issued, the damage is already done. The UN, which backs the ICC, also maintains the current peacekeeping force in Darfur, and it seems unlikely that Sudan will allow the peacekeepers to remain if their political leaders face indictment and arrest. The removal of the peacekeeping force, as ineffectual as it has been, would likely herald the resumption of a massive cleansing campaign by the Sudanese government in an effort to "solve" the Darfur problem before international intervention occurs again (if it ever does). Furthermore, the BBC reported on Sunday that China was breaking the UN-imposed arms embargo on Sudan, "roviding military equipment and training pilots to fly Chinese jets." While this development is all that surprising, given the diversion of international pressure on China from Darfur to Tibet, it is a troubling one, as it signals, perhaps, the end of Chinese cooperation on Sudan.

Given the precarious nature of the international community's involvement in Darfur, the indictment of al-Bashir by the ICC was definitely ill-timed and most likely ill-advised. I've blogged several times before about the problems inherent in international justice and law, and this is no different. Given that al-Bashir is unlikely to ever stand trial, maintaining the peacekeeping presence was more important than making a point through law.

The international community needs to prepare itself for more attacks on the peacekeepers, if not their expulsion from Sudan. And if (and when) that happens, given China's backsliding, it is all but impossible for the UN to put together a stronger intervention. So, the burden and responsibility will likely fall on the United States and its NATO allies. Sudan must not be allowed to continue its murderous campaign against Darfur, and China must not be allowed to shield Sudan. President Bush and the heads of states and government of the western countries should immediately threaten to boycott the Olympics, not over Tibet (which is a lost cause) but over Chinese violations of the arms embargo and protection of Sudan. China must be leveraged away from Sudan.

However, while China may be willing to support increased sanctions on Sudan, it will not, nor will Russia, support an intervention without the permission of the Sudanese government. Thus, NATO needs to be ready, if it cares at all about saving the Darfuri people, to deploy a force to Sudan immediately. Anything less will likely condemn the people of Darfur to their doom.

Know How to Photoshop? Iran Needs Your Help!

The international community was on edge this week as tensions rose in the Middle East between Israel and Iran. News of an Israeli wargame leaked out, and Iran responded by testing four missiles that potentially have the range to hit Israel.

However, as the photo above reveals, the evidence of the missile test was faked by Iran. According to the New York Times:

Agence France-Presse, which distributed the image of the four missiles to the West, said it was obtained on Wednesday from the Web site of Sepah News, the media arm of the Revolutionary Guards.

On Thursday, The Associated Press released what appeared to be a nearly identical photo, but Little Green Footballs a conservative blog, identified the altered image on its site on Wednesday night . Last year the blog pointed out a manipulated image that had been distributed by Iran’s semiofficial Fars News Agency. As in the case of Wednesday’s photograph and many others that the site has uncovered, the one from 2007 appeared to contain several cloned elements.

Iranian leaders have overstated military developments in the past. “They’ve made some exaggerated claims from time to time,” said Gary Sick, an expert on Iran at Columbia University. “They clearly want the world to be impressed with their missile capability.”

Agence France-Presse retracted its original image on Thursday morning, saying the fourth missile “has apparently been added in digital retouch to cover a grounded missile that may have failed during the test.”

Furthermore, many analysts questioned Iran's claim that the test revealed improvements in Iran's strategic capabilities. In the Los Angeles Times, Graham Allison, director of the Belfer Center for Science and International Affairs at Harvard’s Kennedy School, states that “There is no evidence of a significant advance in previously known missile capabilities of Iran’s medium- and long-range missiles.”

If it weren't so scary, it would be pretty funny.

The Absurdity of International Climate Change Policy

Yesterday, the leaders of the G8 countries announced a break-through (of sorts) on international climate change policy. In exchange for getting the United States to agree to the relatively modest goal of reducing carbon emissions by 50% by 2050, the other members signed on to a statement that developing countries -- including China (now the leading producer of carbon emissions), India, Brazil, and Mexico -- need to cut their emissions as well.

But therein lies the rub. The developing countries do not feel that they should be required to cut their emissions, as they did not contribute to the current problem. In a statement, the five major developing countries announced that "It is essential that developed countries take the lead in achieving ambitious and absolute greenhouse gas emissions reductions," and that they rejected the notion that all should share in the 50-percent target, since it is wealthier countries that have created most of the environmental damage up to now.

This might be true in a moral sense. Certainly, the developed economies of the Western countries have produced more carbon that have those of the developing nations. But morality doesn't count for much in politics. If the developing countries refuse to cut their emissions, political theory tells us that the developed states will be hesitant to do so, for fear of losing their edge and seeing their relative power diminish. Ultimately, the environment is a massive tragedy of the commons, in which the absence of over-arching regulatory authority means that a public good gets overused, as no actor will restrain his use of the commons while other actors remain free to exploit it. Why should the US damage its own economy if China remains free to pollute? China will enjoy the gains of a better environment, without paying the costs, while the US will pay the costs without reaping the full benefits, due to China's continued polluting.

The international arena is not the best venue for producing global environmental change. The collective actions problems, as well as other barriers to action, are simply too large. As states like California have recently developed, the best strategy is to focus on local change, and to allow other mechanisms to spread the successful innovations and developments to other parts of the country and the world. The international system is far too anarchic and power-based to expect any real progress.

Fixing the War Powers Resolution

As readers of Security Dilemmas may know, I am currently working on questions of presidential-congressional war powers, and have a contract with Praeger Press for my book Restoring the Balance: War Powers in an Age of Terror. So, it is of course of interest to me that the National War Powers Commission has published its report (the pdf file of the final report is here) on how to fix war powers. The Commission also published an op-ed in today's New York Times summarizing their findings.

The Commission notes that the War Powers Resolution of 1973 has been monumentally ineffective at resolving fundamental questions -- both constitutional and political -- of war powers. The WPR is also, most likely, unconstitutional, as the stipulation that Congress need only pass a concurrent resolution to force the president to withdraw deployed troops seems to violate the prohibition on legislative vetoes established in INS v. Chadha. But, more importantly, the WPR wasn't really in tune with political reality:

it too narrowly defines the president’s war powers to exclude the power to respond to sudden attacks on Americans abroad; it empowers Congress to terminate an armed conflict by simply doing nothing; and it fails to identify which of the 535 members of Congress the president should consult before going to war.

Their recommendations:

Our proposed statute would provide that the president must consult with Congress before ordering a “significant armed conflict” — defined as combat operations that last or are expected to last more than a week. To provide more clarity than the 1973 War Powers Resolution, our statute also defines what types of hostilities would not be considered significant armed conflicts — for example, training exercises, covert operations or missions to protect and rescue Americans abroad. If secrecy or other circumstances precluded prior consultation, then consultation — not just notification — would need to be undertaken within three days.

To guarantee that the president consults with a cross section of Congress, the act would create a joint Congressional committee made up of the leaders of the House and the Senate as well as the chairmen and ranking members of key committees. These are the members of Congress with whom the president would need to personally consult. Almost as important, the act would establish a permanent, bipartisan staff with access to all relevant intelligence and national-security information.

Congress would have obligations, too. Unless it declared war or otherwise expressly authorized a conflict, it would have to vote within 30 days on a resolution of approval. If the resolution of approval was defeated in either House, any member of Congress could propose a resolution of disapproval. Such a resolution would have the force of law, however, only if it were passed by both houses and signed by the president or the president’s veto were overridden. If the resolution of disapproval did not survive the president’s veto, Congress could express its opposition by, for example, using its internal rules to block future spending on the conflict.

This is an admirable effort, and is infinitely better than the War Powers Resolution (not to mention that it solves the legislative veto problem). However, it is not likely to satisfactorily resolve the concerns over war powers.

On one hand, the proposed statute gives broad powers to the president, but still couches the commander-in-chief power under the domain of the legislative branch. As I have argued multiple times on this site, as well as in two law review articles and my forthcoming book, it is not at all clear that the Constitution intends Congress to have any say whatsoever over the deployment of the armed forces of the United States. If, as I argue, the "declare war" clause is about the power to transform the legal status of the political arenas rather than the power to deploy troops or initiate hostilities, then giving Congress any power to force the president to bring deployed troops home is a violation of the separation of powers mandated by the Constitution.

On the other hand, the method by which the proposed statute functions is unlikely to satisfy proponents of a more robust role for Congress on the issue of war powers. Forcing the president to bring the troops home would require: 1) A vote to authorize the deployment to fail; 2) Both Houses to pass a "resolution of disapproval," and; 3) Both Houses to override the inevitable presidential veto by a 2/3 vote. It is all but inconceivable that this would happen. Even in a fantastically unpopular war, like the current one in Iraq was during its darkest days, it is unlikely that enough of the president's fellow party members would defect. Furthermore, as Iraq has clearly demonstrated, even those congressmen vehemently opposed to the war are loath to go on record opposing the president, and even more hesitant to take actions to end the war when such actions would place blame and responsibility on their heads, rather than on the president's.

The report is a welcome improvement on the War Powers Resolution. But I do not expect that it will have any meaningful impact on the balance of war powers between the president and Congress. It does mandate regular reporting on active troop deployments, and creates a clear mechanism for doing so, and that is a good thing. But, even while rejecting the War Powers Resolution, presidents have tended to regularly report to Congress, so not much will change there either. Still, the War Powers Resolution is a terrible piece of legislation, and deserves to be put to rest. Whether this proposed legislation can and will pass is a question to which I do not know the answer. It definitely seems to reduce the power of Congress (although only hypothetically, as Congress has never even really tried to enforce the WPR), so it should be an interesting debate.

UPDATE: I'm currently teaching US Foreign Policy in summer school, and as we talked about war powers yesterday, we considered the Commission's report today. It occurred to me that there's another reason this proposal might be not-so-good from the perspective of desiring a strong congressional role. Forcing a vote on approving the deployment of force at the 30 day mark may make it more likely that Congress will fail to stand up to the president. It's exceedingly hard for Congress to go on record as opposing the use of force by the president. After all, no one wants to be seen as soft on ____ (Insert communism, terrorism, or whatever bogeyman is popular); furthermore, congressmen don't want to be blamed for whatever happens, especially if they force the troops to come home. So, at the 30 day mark, when the conflict is still relatively fresh, there may be bureaucratic inertia that favors the president and renders any dissent impotent.

The Torture of Christopher Hitchens

This blog has spent a fair amount of time in the past considering the question of torture (a few of the posts can be found here, here, here, here, and here). I've gone back and forth on the issue, but, in brief, my position is this: Measures amounting to torture, if they are to be used at all, must only be used in rare and specific cases and always in accordance with existing laws. But, for all my theoretical exploration of the issue I have, thankfully, no practical experience on which to base my argument.

But Christopher Hitchens does. Recently, Hitch allowed himself to be waterboarded by the people who train US Special Forces soldiers to resist torture at the hands of the enemy. The experience is, by all acounts, horrifying. Over at Vanity Fair, Hitchens has written an article about the experience, and there is a video as well. Both are well worth your time. In Hitchens' opinion, "if waterboarding does not constitute torture, then there is no such thing as torture."

I don't know quite what to make of the torture of Hitchens. Watching the video is truly shocking. He lasts all of 10 seconds (more or less) before ending the demonstration in sheer terror, and confesses to now having panic attacks and nightmares. However, while I may not have experienced waterboarding, I was under no naive conceptions about its nature. Nor does that change the theoretic logic with which I understand the dilemma. Of course, interrogation measures like waterboarding are extreme, terrifying, and torturous. They are, and should be, beyond the pale of all but the most extreme interrogations. If the country as a whole believes that there are absolutely no circumstances under which such techniques would be justified, then the techniques should be clearly and explicitly prohibited. Congress' refusal to explicitly ban waterboarding has left the door open for its use. While I do believe that the use of torture may, in very rare, unique, and controlled cases be justified, I also believe that the law must be followed.

The question of the use of torture is a difficult one to think clearly and rationally about. Hitchens manages to do so, even having undergone torture himself. As he notes (quoting a discussion he had with Malcolm Nance:

1. Waterboarding is a deliberate torture technique and has been prosecuted as such by our judicial arm when perpetrated by others.

2. If we allow it and justify it, we cannot complain if it is employed in the future by other regimes on captive U.S. citizens. It is a method of putting American prisoners in harm’s way.

3. It may be a means of extracting information, but it is also a means of extracting junk information. (Mr. Nance told me that he had heard of someone’s being compelled to confess that he was a hermaphrodite. I later had an awful twinge while wondering if I myself could have been “dunked” this far.) To put it briefly, even the C.I.A. sources for the Washington Post story on waterboarding conceded that the information they got out of Khalid Sheikh Mohammed was “not all of it reliable.” Just put a pencil line under that last phrase, or commit it to memory.

4. It opens a door that cannot be closed. Once you have posed the notorious “ticking bomb” question, and once you assume that you are in the right, what will you not do? Waterboarding not getting results fast enough? The terrorist’s clock still ticking? Well, then, bring on the thumbscrews and the pincers and the electrodes and the rack.

As I've noted in my posts linked above, some of these arguments I do not buy; others I have great sympathy with. This is not an easy discussion to have; even having it is likely to get one branded as a "torture sympathizer." But we must have it.