Filed under: Publius | Tags: Congressional Power, Constitution and War, Resolution 362, U.S. Policy Toward Iran
Let it be clearly understood—there is no authority to wage war without Congress passing a declaration of war. A UN or similarly alternative resolution authorizing the use of force, even if it were to come, cannot replace the legal process for the United States going to war as precisely defined in the Constitution. Only tyrants can take a nation to war without the consent of the people. Undeclared war is also unwise because of the many unforeseen consequences that are likely to result. Victory under such circumstances is always elusive and unintended consequences are inevitable.
In Article I Section 8 of the United States Constitution the Framers made it explicitly clear regarding the specific enumerated powers given to the legislature: “The Congress shall have power to… declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water.”
The Framers of the Constitution intended that the President not engage in war without an act of Congress thus effectively giving the President little power with regard to conducting war—the only exception being imminent attack on US territory. In fact the Framers chose the final wording with the intent of “leaving to the Executive the power to repel sudden attacks” without the explicit approval of Congress. Beyond this limited war-making authority the President is beholden to the legislature in matters of war and peace.
Since World War II, from Korea to Iraq, consecutive Congresses have abdicated their responsibility to the President. Essentially, Congress has abrogated Constitutional law and proved their monumental capacity for both blind ignorance and political cowardice.
It should come as no surprise then that, despite Congressional folly with respect to the Iraq war, potential war looms ominously on the horizon with Iran.
Which brings us to H.J. Resolution 362. Introduced in the House of May 22, 2008 by Congressman Marty Ackerman (NY) this resolution expresses “the sense of Congress regarding the threat posed to international peace, stability in the Middle East, and the vital national security interests of the United States by Iran’s pursuit of nuclear weapons and regional hegemony, and for other purposes.” In addition to its Senate counterpart, Senate Resolution 580, H.J. Res. 362 was referred to the House Committee on Foreign Relations. While awaiting Congress to resume from its July 4th break the bill currently has 220 cosponsors and is expected to easily pass under suspension.
What’s alarming about this proposed piece of legislation is that is virtually a declaration of war—in all but name only. In H.J. Res. 362 Congress “demands that the President initiate an international effort to immediately and dramatically increase the economic, political, and diplomatic pressure on Iran to verifiably suspend its nuclear enrichment activities by, inter alia, prohibiting the export to Iran of all refined petroleum products; imposing stringent inspection requirements on all persons, vehicles, ships, planes, trains, and cargo entering or departing Iran; and prohibiting the international movement of all Iranian officials not involved in negotiating the suspension of Iran’s nuclear program.”
This is an American attempt to virtually shut down all of Iran. No where in the text of the proposed resolution, however, does it explain from where the Constitutional, moral or international legality is derived. Moreover Iran is a signatory of the Non-Proliferation treaty and the enrichment of uranium for energy purposes is well within their legal rights. As such, prima facie, such a deliberately provocative and aggressive posture from one country towards another and cannot be any clearer sign than as casus belli.
Since President Bush first defined in 2002 the “Axis of Evil” fears over a potential US strike against Iran have steadily risen. For the last several weeks if not for months we have heard a lot more talk about either Israel and/or the United States attacking Iran. Despite last year’s National Intelligence Estimate (NIE), which declared that Iran had suspended its nuclear weapons program in 2003 and that there was no evidence that they were then enriching uranium for weapons purposes, both the US and Israel continue to aggressively discuss a preventative war with Iran without negotiations or talks.
Of course Congress will point to a clause buried within the text of the legislation which stipulates that “whereas nothing in this resolution shall be construed as an authorization of the use of force against Iran.” So there it is: saber-rattling. While the US may talk tough, the legislation prohibits the use of force against Iran.
Sound familiar? It should. In 1998 Congress passed a similar resolution with similar language. This time, however, it was directed to Iran’s neighbor to the west. House Resolution 4655 which was subsequently signed by then President Bill Clinton into US Public Law 105-338 was known as the “Iraq Liberation Act.”
The law, yes, US Public law, stated that “it should be the policy of the United States to seek to remove the Saddam Hussein regime from power in Iraq and to replace it with a democratic government.” In addition to the removal of Saddam Hussein from power it provides additional provisions, among many, for “grant assistance for radio and television broadcasting to Iraq”; that “no assistance under this section shall be provided to any group within an organization designated in accordance with section 5 which group is, at the time the assistance is to be provided, engaged in military cooperation with the Saddam Hussein regime”; and “urges the President to call upon the United Nations to establish an international criminal tribunal for the purpose of indicting, prosecuting, and imprisoning Saddam Hussein and other Iraqi officials who are responsible for crimes against humanity, genocide, and other criminal violations of international law.”
At the end of this particular bill it states that “Nothing in this Act shall be construed to authorize or otherwise speak to the use of United States Armed Forces (except as provided in section 4(a)(2)) in carrying out this Act .” Section 4 (a)(2) deals with weapons transfers from US stocks to help aid and train anti-Saddam groups.
Of course we all went on and listened for years to the rhetoric and the propaganda inundating us about the dangers of Iraq, the threat it posed to US national security and its WMD programs. But the 1998 resolution wasn’t good enough. And yet once again, without a clear declaration of war, despite its Constitutional mandate, Congress gleefully signed away its responsibility—believing that it could support the war but remain unaccountable. In 2002 Congress passed H.J. Resolution 114 and President Bush signed Public Law No. 107-243 more affectionately known as “Authorization for Use of Military Force Against Iraq Resolution of 2002.”
Congress went from prohibiting any use of force in 1998 to declaring in 2002 that “the President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to…(1) defend the national security of the United States against the continuing threat posed by Iraq; and (2) enforce all relevant United Nations Security Council Resolutions regarding Iraq.”
This is unbelievable. Despite everything that has happened in Iraq, record energy costs, increasing violence in the Middle East and the laughable threat that Iranians pose to the United States it is unfathomable that the US is on the verge of attacking Iran. More worrisome is that American politicians from both the right and the left have refused to remove all options from the table—up to and including a nuclear first strike on Iran.
If the severity of the “threat” of Iraq wasn’t true then it’s hard to believe now that Iran—who fought Iraq to a STANDSTILL over the course of 8 years—poses a similarly over-hyped threat today. The United States must look at this carefully and realize it cannot go to war under false, overblown or frivolous conditions. More importantly members of the United States Congress should fulfill their most sacred duty: to protect and defend the Constitution of the United States.
The American Foreign Policy
In determining the role foreign policy plays with respect to the United States and the Middle East one must first briefly define the proper role of the American government in conducting foreign policy. One should also note that any cursory glance of the foreign policy emanating from the United States—past or present—should always be measured against the origins and narrowly defined goals of foreign affairs explicitly created by America’s Revolutionary generation.
Government, in a free society and as envisioned under the American conception, is instituted among men to ensure their liberty. A national government (read: American government) essentially serves two functions: equal protection under the law and to provide national defense in order to protect state sovereignty. Beyond these two very specific and reasonable goals government serves no function other than to undermine liberty.
While often overlooked, it is essential that the proper role of government always be squarely in mind when debating American foreign policy. To ignore or omit the functional limitations of foreign policy with respect to the charge entrusted the Federal government is to do grave harm to the American system. Based on this understanding of the function of American government in foreign policy international affairs based on American liberty can be thus established.
In order to gather a clear picture of the original intent and conduct of US foreign affairs one need only turn to the American Founding Fathers and first few presidents. The Founders’ words were clear. The American Revolutionary generation, having been subjected to colonial rule and acutely aware of the disastrous wars which routinely consumed Europe, were steadfastly against involvement in the affairs of other countries—especially their internal politics. The architects of the American Revolution, happy to be free of the endless European wars, made peace and neutrality a hallmark of the newly minted government.
In April 1793 US President George Washington issued the most forceful statement of the posture the fledgling Republic he wished it forever take with regard to its foreign affairs. As war was raging in Europe, Washington issued his famous Proclamation of Neutrality. In it he declared that it was the “duty and interest of the United States require, that they should with sincerity and good faith adopt and pursue a conduct friendly and impartial toward the belligerent Powers.” The President went on declare that any US citizen acting on behalf of any of the European powers would be subject to criminal prosecution.
Chief among dangers to neutrality, in their minds, was that of political alliances. Who are America’s permanent friends and enemies? Should America have permanent friends or enemies? Approaches to these foreign policy questions were and are at the heart of any serious debate over what the United States should be.
In 1796, in his farewell address, President Washington made explicitly clear his position on the matter, “The Great rule of conduct for us, in regard to foreign Nations is in extending our commercial relations to have with them as little political connection as possible. . . . ‘Tis our true policy to steer clear of permanent Alliances, with any portion of the foreign World,” and continued by warning his countrymen that wisdom lies in “constantly keeping in view that it is folly in one nation to look for disinterested favors from another; that it must pay with a portion of its independence for whatever it may accept under that character; by such acceptance, it may place itself in the condition of having given equivalents for nominal favors, and of yet being reproached for not giving more. There can be no greater error than to expect or calculate upon real favors from nation to nation. It is an illusion, which experience must cure, which a just pride ought to discard.”
In his 1801 inaugural speech, President Thomas Jefferson further elaborated the US position with respect to foreign affairs: “Peace, commerce, and honest friendship with all nations—entangling alliances with none.”
In a speech delivered to the United States House of Representatives in 1821, former President and then Secretary of State John Q. Adams gave a moving, powerful speech that should have laid any doubts to rest as to how the Framers viewed the practice and conduct of US foreign policy.
In his speech Adams said that, “America, in the assembly of nations, since her admission among them, has invariably, though often fruitlessly, held forth to them the hand of honest friendship, of equal freedom, of generous reciprocity. She has uniformly spoken among them, though often to heedless and often to disdainful ears, the language of equal liberty, of equal justice, and of equal rights. She has, in the lapse of nearly half a century, without a single exception, respected the independence of other nations while asserting and maintaining her own. She has abstained from interference in the concerns of others, even when conflict has been for principles to which she clings, as to the last vital drop that visits the heart. She has seen that probably for centuries to come, all the contests of that Aceldama the European world, will be contests of inveterate power, and emerging right. Wherever the standard of freedom and Independence has been or shall be unfurled, there will her heart, her benedictions and her prayers be. But she goes not abroad, in search of monsters to destroy. She is the well-wisher to the freedom and independence of all. She is the champion and vindicator only of her own. She will commend the general cause by the countenance of her voice, and the benignant sympathy of her example. She well knows that by once enlisting under other banners than her own, were they even the banners of foreign independence, she would involve herself beyond the power of extrication, in all the wars of interest and intrigue, of individual avarice, envy, and ambition, which assume the colors and usurp the standard of freedom. The fundamental maxims of her policy would insensibly change from liberty to force. She might become the dictatress of the world. She would be no longer the ruler of her own spirit. America’s glory is not dominion, but liberty. Her march is the march of the mind. She has a spear and a shield: but the motto upon her shield is, Freedom, Independence, Peace. This has been her Declaration: this has been, as far as her necessary intercourse with the rest of mankind would permit, her practice.”
America, Washington argued, should set an example for the rest of the world by pursuing peace, commerce, paying its debts and resisting frequent pressures to go to war. As human beings are almost instinctively hardwired for war, he knew this would be a difficult standard to abide by, but urge his fellow countrymen to try, “observe good faith and justice towards all nations. Cultivate peace and harmony with all. Religion and morality enjoin this conduct, and can it be that good policy does not equally enjoin it?”
Washington’s address came at a pivotal time in US history as the country was deeply divided over participation in European war. Its relevance should not be lost on Americans today as the US remains at another pivotal point in which American citizens are again divided over the current wars in Iraq and Afghanistan and one on the horizon with Iran. Since the Middle East is currently the flashpoint of contemporary US foreign policy it is to the same region we can look to the past in order to understand how far the United States has strayed from its original foreign policy.
American Foreign Policy and the Middle East
America’s involvement with the Middle East is nothing new; in fact the sultan of Morocco, Sidi Muhammad bin ‘Abdallah, is claimed to have been the first head of state to recognize American independence in December 1777. From its infancy, however, the fragile, young American Republic faced many challenges and perils but going back to 1776 the United States faced both the world and the Middle East alone.
Prior to July 4th, American ships sailed the seas comfortable in the knowledge that its merchant vessels were protected by then history’s greatest naval power: Great Britain. When British protection evaporated America faced a serious threat and it came from the Middle East. It came, specifically, from the North African region of Maghreb. The area embraced four states: the independent empire of Morocco and the three semi-autonomous Ottoman provinces or regencies of Tunis, Algiers and Tripoli (present day Libya). All four were pirate kingdoms, known to the US as the Barbary States.
For about 600 years, from the thirteenth to the seventeenth centuries, the Barbary pirates attacked European merchant ships, taking thousands of prisoners, and selling them as slaves. In fact, the Barbary nations considered themselves to be at war with any nation that had not negotiated a “peace treaty” with them for a sum of money—the United States being one such country. Early colonial Americans also fell victim to pirate attacks, the first being recorded in 1628, only eight years after the Plymouth landing, with recurrences throughout the century. Of the 390 English captives ransomed from Algiers in 1680, eleven were residents of New England and New York.
Much like today, the Middle East played to both American fantasies and fears; it had long been known to Americans as hostile area. Anti-Islamic tracts with names like “The Nature of the Impostor Mohamat” were widely circulated throughout the colonies. While faith and fantasy has characterized a great deal of the American-Middle Eastern relationship, the Barbary issue was not about faith, however, or fantasy, but simply about power. The pirate attacks drove up insurance rates and deterred foreign merchants from shipping on American boats. In turn, the country’s economy, already fragile, reeled.
What differed, however, is that the threat coming from the Middle East was real, it was serious and it was an occasion in which American intervention in the region could be justified. America was on her own, facing a fundamental threat not only to her economy and international standing, but to her very existence as a state. While many American politicians, John Adams included, felt that bribing the Barbary States would bring closure to the situation; they, however, grossly underestimated the price which would be required to pay and were unable to pay off the pashas.
The United States, at the time, was just then beginning to coalesce into a new nation and the powers of the Federal government were very much debated. The Continental Army and Navy, having been depleted by the Revolutionary War, were in no position to confront the Barbary States.
It was not until the presidency of Thomas Jefferson that the US had a navy that could effectively confront the Barbary threat. Prior to Jefferson’s tenure, under the Adams’ administration, the United States had signed and ratified in the Senate the Treaty of Tripoli in 1796.
While the US and the Barbary States continued to fight on and off until 1815 when the Barbary States finally acquiesced to American insistence that Barbary pirate no longer threaten their commercial interests, under threat of all-out war, the principles enshrined in the treaty, particularly Article XI, clearly support the original intent of the Founder’s view of foreign policy as it applied to the Middle East, “As the Government of the United States of America is not, in any sense, founded on the Christian religion; as it has in itself no character of enmity against the laws, religion, or tranquility, of Mussulmen; and, as the said States never entered into any war, or act of hostility against any Mahometan nation, it is declared by the parties, that no pretext arising from religious opinions, shall ever produce an interruption of the harmony existing between the two countries.”
While current stereotypes and trends prevailed as much then as they do now, what is different is that American leaders understood that the dispute between the US and the Barbary states was clearly a United States national security threat and dealt with appropriately. It was not as an ideological crusade, not a pretext for a war with no clear goals nor did the US intend to occupy a foreign country. America simply honored its stated foreign policy aims.
The Future of American Foreign Policy in the Region
Following the Barbary Wars up until the end of the 19th century America followed the advice of the Founders. But beginning with the Spanish-American war in 1898 right up through the Cold War into present day the US has since positioned itself as a global hegemonic power, despite clear warnings from the Founders that such a position is untenable and would lead the American Republic to ruin. So if over 70 years of activism specifically in the Middle East has not produced a better American foreign policy, how should America proceed? The United States should do less; it should return to its original foreign policy of nonintervention. It should practice a “grand strategy of restraint,” as MIT’s Barry Posen has suggested or some variation on such a theme.
Despite claims to the contrary current threats to the United States are not existential; threats to US sovereignty are nonexistent—not even from China, Iran or North Korea; American continental sovereignty is and will remain secure. Given that the Soviet Union does not exist and the Cold War is over American troops abroad should begin returning home and US military bases deconstructed. There is no position that could justify their continued presence in over 130 bases around the world which, in many cases, incites more hatred against the United States than anything else. Moreover, the Founders were deathly afraid of maintaining standing American armies as they become cause for increased taxation and larger, more centralized national government.
In addition the threat from Islamic radicals is not a geopolitical threat. Islamic radicals, Al Qaeda in particular, cannot destroy the United States and it would be wise to stop suggesting that they can. But if understanding how much US policy plays in fueling the threat of Islamic fundamentalism, one can assume there are deeper forces feeding Islamists than interpretation of religious texts and it would be wise to acknowledge as much. Essentially, Posen argues, Al Qaeda is not the problem, but an example stemming from global disorder and disaffection. The condition is the problem in which “American power and actions over the years have done a good deal, albeit inadvertently, to cause, but cannot now easily or by themselves redress.”
As many scholars, media analysts and both current and former US policy makers who have not forgotten what America stands for have indicated—from Chalmers Johnson, Robert Pape, Ron Paul, Paul Craig Roberts and Michael Scheuer—it is high time US policymakers, the media and the US public abandon the tired assertion that the United States was attacked because it is rich and free and instead try to understand the specific motivations of those who attacked the US. They attacked the US because of policies America has and is continuing to pursue in the Middle East. And, they say, to ignore this immutable fact is to do so at their own peril.
The solution, therefore, is aligning US foreign policy with its values and interests.
Instead of focusing on exporting democracy, which the US lacks sufficient knowledge to accomplish in any event America should allow the right of self-determination and stay out of the internal affairs of other nations as the Founders proposed more than two centuries ago. As Scheuer eloquently notes, “America’s democracy is not an exportable commodity; it is unique to the United States and the product of 800 years of heroes and villains, war and civil war, racial strife and racial reconciliation, and foolishness and common sense… it is grounded in Britain’s political experience, Scottish commonsense philosophy, British common law, Calvinist Protestant Christianity, and the absolute requirement of an educated populace to evaluate—and when necessary check—the policies, ambitions, and greed of elected officials.”
The US should lead its own country and avoid international leadership wherever possible. It must also shrug off the legacy of the Cold War and the policies which continue to live well beyond their expiration dates—from unqualified US financial and military support for Israel, Egypt, Saudi Arabia and Jordan to demonization and sanctioning of Iran. America must develop a sensible foreign policy. A policy based on reality, traditions and common sense.
In 2007, taking his cues from Washington, Jefferson and Adams, Congressman Ron Paul (TX) advocated before the US House of Representatives a clear return to the policies of the true American heritage particularly in the Middle East, “A coherent foreign policy is based on the understanding that America is best served by not interfering in the deadly conflicts that define the Middle East. Yes, we need Middle Eastern oil, but we can reduce our need by exploring domestic sources. We should rid ourselves of the notion that we are at the mercy of the oil-producing countries—as the world’s largest oil consumer, their wealth depends on our business. We should stop the endless game of playing faction against faction, and recognize that buying allies doesn’t work. We should curtail the heavy militarization of the area by ending our disastrous foreign aid payments. We should stop propping up dictators and putting band-aids on festering problems. We should understand that our political and military involvement in the region creates far more problems than it solves. All Americans will benefit, both in terms of their safety and their pocketbooks, if we pursue a coherent, neutral foreign policy of non-interventionism, free trade, and self-determination in the Middle East.”
The Cold War is over. Interventionism, both globally and in the Middle East, has failed and it is high time to remember the advice of the Founding Fathers. If the United States took heed of those who brought her into this world, they would remember Adam’s maxim that “America’s glory is not dominion, but liberty” and that while “freedom, independence and peace” are etched on her shield it is also her declaration to the world and the policy which she was intended to pursue with it.
The Founders of the American Republic had laid bare an explicitly clear idea of what US foreign policy is all about and the unique relationship it plays for the Republic. As the brilliant historian Walter MacDougall put it, “Foreign policy defines what America is at home and is the instrument for preserving and expanding American freedom at home. Foreign policy conducted in the form of crusades for democracy or other ideologies abroad belie America’s ideals, violate its true interests, and sully its freedom. The Founders never intended foreign policy to impose their values beyond America’s own land and waters. None of the Founders perceived a mortal conflict between morality and the national interest; indeed, foreign policy is moral when it is in the national interest.” The United States would be well-served to return to its original noninterventionist foreign policy.