Insisting that President Obama is wrong to claim that ISIS is “contained,” Texas Republican Congressman Ted Poe wants to globalize the conflict by invoking Article Five of the NATO treaty. That provision describes an attack on one member of the North Atlantic Treaty Organization as an attack upon all members of the alliance.
“President Obama is wrong – ISIS is not contained,” declared Rep. Poe, who on Monday introduced a resolution urging the administration to invoke Article Five. “This is our fight, but not our fight alone. American should take the lead and urge a joint response as a body of nations.”
Poe’s resolution may precipitate a conflict between the Republican-dominated Congress and President Obama, who has made it clear that he does not want to escalate U.S. military operations against the Islamic State. If the resolution passes and Obama vetoes it, this development would be “unprecedented in American history,” observes Fox News legal analyst Judge Andrew Napolitano: “We have never, ever, ever had a Congressional declaration of war and a president refuse to move on it.”
Under the Constitution, “Congress declares war, and presidents wage war,” Judge Napolitano continued. If the resolution passes – which may be very likely, given that the Republicans control both houses, and many Democrats may enlist in support of Poe’s bill – then the president would be required “to faithfully execute” its terms by waging “a war he has said … he doesn’t want to wage and he has said he doesn’t believe is in the best interests of the United States.” Napolitano also pointed out that the constitutional mechanism for committing the United States to war presupposed an attack on the United States, rather than a reaction to “fear because of one awful weekend” in another country.
This effort to commit the U.S. government to war by circumventing the president, is a role-reversal for the tactics used by President Obama in bypassing Congress to wage war in Libya four years ago. Acting at a time when Congress wasn’t in session, the Obama administration assembled an international “coalition” to demand what could be called a UN declaration of war.
In March 2011, the Arab League, by unrecorded voice vote, petitioned the UN to enact a “no-fly zone” over Libya. The League’s resolution was brought about, in large measure, through a covert deal between Washington and Riyadh allowing the Saudis to dispatch an expeditionary force to Bahrain to help the Sunni al-Khalifa monarchy put down an uprising on the part of its suppressed and persecuted Shiite minority.
With Washington’s tacit blessing, Saudi troops assisted Bahrain’s U.S.-equipped security forces to massacre peaceful protesters. This was done, once again, to secure an Arab League resolution asking the Security Council to authorize a “no-fly zone” in Libya, which the public was told would be a “limited” engagement.
As former Republican presidential contender Ron Paul pointed out at the time, establishing a “no-fly zone” is an act of war. To use a somewhat vulgar metaphor, once warplanes invade and occupy a country’s air space, and the pilots are given orders to kill, foreplay has ended and intromission has occurred.
Acting on that principle, the Obama administration quickly abandoned any pretense of restraint, urging the Security Council to pass a resolution “authorizing” a “range of actions” going well beyond deployment of warplanes over Libya. The administration obtained a Chapter Seven resolution — the UN equivalent of a formal declaration of war. Congress played no role in this process.
During congressional testimony a year later, then-Secretary of Defense Leon Panetta was asked about the “legal basis” for the administration’s war on Libya, and if the administration believed it could “act without Congress to initiate a no-fly zone in Syria – without Congressional approval….”
“Our goal would be to seek international permission” Panetta replied, adding, as if by afterthought, that “we would come to the Congress and inform you” about the progress of the campaign. Once “legal permission” had been obtained through NATO or “some kind of UN Security Council resolution,” the president wouldn’t need authorization from Congress, Panetta – a former Congressman – maintained.
Many Republican congressmen – Ted Poe among them – have been highly critical of the Obama administration’s reliance on multilateral organizations in conducting foreign policy. Those criticisms often focus on the United Nations, an organization looked upon with special disdain by conservatives. However, NATO is an affiliate of the world body, as defined by Articles 52-54 of the United Nations Charter (which describes “Regional Arrangements”).
During a March 19, 1949 speech calling for Senate ratification of the NATO Charter, Dean Acheson, Harry Truman’s Secretary of State, explained that the alliance was “designed to fit precisely into the framework of the United Nations,” that it was “subject to the overriding provisions of the United Nations Charter,” and that it was “an essential measure for strengthening the United Nations.”
NATO is precisely the kind of “entangling” foreign alliance against which George Washington warned in his famous Farewell Address. Its status as an appendage to the United Nations should make it disreputable to conservative Republicans – who in this instance are setting aside any pretense of dedication to constitutional principles in order to indulge their war lust and partisan animosity.
Ted Poe’s resolution may result in the U.S. government being maneuvered into what could be a world war – but that measure would not be a constitutionally valid declaration of war. This isn’t surprising, given that many conservative Republicans embrace the view that the Constitution is a “living document” where war powers are concerned.
“There are things in the Constitution that have been overtaken by events, by time,” insisted the late Rep. Henry Hyde in 2002, as George W. Bush administration prepared to invade and occupy Iraq. “Declaration of war is one of them. There are things no longer relevant to modern society. Why declare war if you don’t have to? We are saying to the president, `Use your judgment.’” Having Congress declare war, Hyde concluded, would be “inappropriate, anachronistic – it isn’t done anymore.”
Perhaps, if Congress had been compelled to follow the “anachronistic” procedure by deliberating the question of the Iraq war in 2002, the world would have been spared the horror and bloody chaos in which ISIS gestated. Regrettably, Congress revisits its mistakes to compound them, rather than to learn from them.