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Did Congress approve America's longest war?—A Commentary by Bruce Ackerman ’67 and Oona Hathaway ’97

The following commentary was published in the UK Guardian on January 27, 2011.

Did Congress approve America's longest war?
By Bruce Ackerman ’67 and Oona Hathaway ’97

President Obama's state of the union was quickly followed by a second one in Afghanistan. President Karzai finally convened the newly-elected parliament with a Kennedyesque "Ask not what Afghanistan can do for you, ask what you can do for Afghanistan." He had been resisting American pressure to open parliament for months, preferring to rule by presidential decree. His capitulation marks a big success for the Obama administration.

Yet the administration's enthusiasm for checks-and-balances stops at the Afghan border. When President Obama dropped a word about Afghanistan in his own address, he spoke as if Congress were merely a passive bystander. He repeated his early decision to begin withdrawal this coming July, but failed even to mention that the troops' final departure would be delayed until 2014, and that Vice President Biden has suggested that we would be continuing to provide support, of an unspecified kind, long afterwards – all without involving Congress.

Obama is not Bush. He doesn't assert that the constitution gives him the unilateral power to make war and peace. Nevertheless, we have been so traumatised by the Bush years that we haven't seriously probed the basis of Obama's continuing assertion of unilateral power. Make no mistake: Obama is not simply winding up a war he did not start; he has expanded it – bringing in more troops than ever before.

Meanwhile, Congress is nowhere to be found. The only time Congress joined in making big decisions was shortly after 11 September 2001, to authorise the presidential use of force against those who "planned, authorised, committed, or aided" the terrorist attack. This was intended to destroy al-Qaida and deprive it of its sanctuaries in Afghanistan. But 10 years onward, this justification is wearing thin. Osama bin Laden is almost certainly in Pakistan, not Afghanistan, along with most of the remaining members of al-Qaida. Indeed, CIA director Leon Panetta has publicly stated that there are only 50 to 100 members of al-Qaida in all of Afghanistan. Would the 2001 resolution continue to apply even if there were only one member of al-Qaida left in the country?

Of course, the congressional resolution also sweeps more broadly to include those who "aided" the attack. In 2001, this surely included the Islamic Republic of Afghanistan controlled by the Taliban. But Karzai and his parliament are now governing the country under an entirely different constitution. We are helping them fight a wide variety of insurgents – including the Haqqani network, Hezb-e-Islami Gulbuddin and Quetta Shura Taliban, to name but the most prominent. But it's a big stretch to say that they are all part of the very same entity that "aided" the 11 September 2001 attack. What's more, almost all the insurgent leaders – including the notorious Taliban leader Mullah Mohammed Omar – are in the tribal areas of Pakistan, not Afghanistan. Is this really the basis of Obama's right to determine the future conduct of America's longest war?

If the answer is yes, it raises a deeper question. Such a loose construction threatens the complete destruction of our constitutional system of checks and balances when it comes to its most important decision: the decision to make war. When Congress responded to the tragedy of the twin towers, it was authorising a limited war in Afghanistan – not a 100-year struggle against terrorism-in-all-its-forms. By pretending otherwise, we are speeding down a slippery slope that cuts future Congresses out of all serious participation in the big decisions on war and peace.

At least Dick Cheney, John Yoo and other Bush apologists were candid in their revolutionary claim that the constitution gave the president exclusive power. This shocker provoked a broader appreciation of the high stakes involved, and helped catapult Obama to the presidency. It would be very sad if the Obama administration managed to consolidate Bush's unconstitutional power-grab by making it seem that a single decision a decade ago sufficed to displace Congress for the indefinite future.