The Briefing

Executive-Congressional Relations and National Security

Monday, January 28, 2013

The last four years should have been a good period for executive-congressional relations in the areas of national security and foreign affairs.  The president, vice president, and secretary of state were former Senators.  They all viewed President George W. Bush as too inclined to bypass or ignore Congress and they promised to do better.  And the Obama administration started with Democratic majorities in the House and Senate.

It is thus surprising that the past four years have been notable for inter-branch clashes and paralysis on some major national security agenda items, with the administration failing to engage Congress or operating in a slowly reactive mode, while many congressional Republicans remain in an obstructionist mode.  In the second term, the Obama administration will need to pick its legislative priorities more deliberately, engage with allies and opponents in Congress more actively, and be willing to negotiate compromises or wage aggressive campaigns on key issues.

Congress has repeatedly stifled the president’s signature counterterrorism promise to close the Guantanamo Bay detention facility.  Congress’s opposition has been more than political.  Beginning with legislation in 2010 when Democrats controlled both houses of Congress, Congress has consistently placed legal barriers on the president’s ability to transfer Guantanamo detainees or to try them in civilian courts in the United States. After hinting in his speech at the National Archives in 2009 that he would work with Congress on these issues, Obama has put forward no proposal of his own, nor has his administration been willing to explore possible compromises on long-term Guantanamo policies, instead playing defense against moves by congressional blocs with their own Guantanamo agendas.  That defensive strategy has included a series of veto threats, which were always abandoned in the end and now carry little credibility.

With regard to war powers, the administration barely escaped a significant congressional rebuke after it failed to obtain congressional authorization for the operations in Libya in 2011 or at least to advance a convincing account for why such authorization was not needed.  The administration conducted international diplomacy effectively, and obtained UN Security Council and Arab League endorsement of military operations to protect Libyan civilians from slaughter.  However, on the domestic front it alienated even congressional supporters of its policy with poor early consultation on the Hill.  In the end, Senate Majority Leader Harry Reid prevented the Senate from taking up a resolution passed by the Foreign Relations Committee that would have authorized the operation but rejected the administration’s strained interpretation of the War Powers Resolution.  Throughout the Libya crisis, the administration’s approach toward Congress was passive and tentative.  It was fortunate for the administration that Congress was splintered and few members were willing to defend its institutional prerogatives, at least within the limited timeframe of the intervention.  But Obama might not be so lucky the next time.

As to treaties, the administration garnered super-majority Senate advice and consent on a record-low number of agreements in its first term.  Despite a strong effort by Secretary of State Hillary Clinton and the Navy leadership, the administration failed to get the UN Convention on the Law of the Sea out of the Senate Foreign Relations Committee.  Once again, part of the explanation for failure was the administration’s poorly timed and coordinated engagement of the Senate on the issue.  In the face of Senate Republican portrayals of other global treaties as threats to US sovereignty, the White House failed to throw its full weight behind its valid arguments that the Law of the Sea Convention would strengthen the US position with respect, for example, to crisis hotspots in Asia and in commercial spheres.

To be clear, the Obama administration has scored successes, too.  For example, putting aside the policy merits, it worked reasonably well with Congress on the completed wind-down of the Iraq war.  It will need to do the same with respect to the planned wind-down of the Afghanistan war and in developing a long-term strategy for Afghanistan and Pakistan.  Much of the blame for policy incoherence on many national security issues such as cybersecurity lies with Congress, which is infected by political polarization and dysfunction as much in international affairs as it is in domestic affairs.

Going forward, the Obama administration will need to bring the same kind of sustained attention and hard-nosed strategic thinking to its legislative agenda on national security issues as it has on some major domestic policy issues.  First, it will need to be selective in its legislative agenda and then wage aggressive campaigns on matters it labels national security priorities.  It did so early in the first term with respect to the New START Treaty, which was in danger of collapse until the administration went all out for it.  Obama’s team enlisted influential allies from previous Republican administrations, engaged in a serious communications campaign at the highest levels, and negotiated as necessary to get the key votes in favor of the treaty.

On some issues, the administration will need to decide on a coherent policy internally and then more actively engage both its allies and opponents on Capitol Hill.  One area where this will be important is the legal architecture of counterterrorism policy.  It is widely understood that continuing to rely on the September 2001 congressional Authorization for Use of Military Force as the basis for detention and targeting operations is increasingly problematic as al Qaeda splinters apart and as the United States winds down combat operations in Afghanistan.  The Obama administration also maintains publicly a commitment to closing Guantanamo.  Yet it has not come forward with proposed legislative frameworks for dealing with these issues.  Even though the president has said repeatedly that he wants to work with Congress on a more durable legal architecture for counterterrorism operations, the administration has been reactive and appears to be undecided about what, if anything, it wants from Congress.

Another area in which executive-congressional relations will feature heavily is Iran’s nuclear build-up, surely one of the most delicate and complex international crises the administration will face this year.   After engaging seriously only at the last minute, it has had to swallow several times congressionally-mandated sanctions that it regards as counterproductive.  As the administration tries to ramp up pressure, it will need to convince skeptical members of Congress that it is applying tough diplomatic pressure on other UN Security Council members and on Iran’s trading partners.  If—under the most optimistic scenarios—it reaches a satisfactory negotiated solution (or establishes a process toward one) with Iran, it will need Congress onboard; otherwise it will find its freedom to maneuver and deliver on assurances severely constrained.

The Obama administration came to office believing—correctly—that national security and foreign policy are most sustainable with clear congressional support.  That has turned out to be harder than expected for Obama to achieve, especially after losing the Democratic majority in the House and facing Republican caucuses that are not eager to compromise, but he can play more deftly the hand he has.