National Security

Indefinite Extension

Obama needs to consult Congress before he authorizes offensive military action in Afghanistan after 2014.

Before he signs off on a post-2014 security agreement with the United States, Afghan President Hamid Karzai has asked for the approval of a grand assembly, or loya jirga, of the country's elders. But despite the importance of the deal -- which will authorize offensive as well as defensive military operations well into the future -- President Barack Obama is planning no similar consultation with the U.S. Congress. Simply put, he wants to commit American troops in Afghanistan without legislative approval.

As with other cases involving military force -- bombing Libya and the on-going drone campaign, to cite two examples -- the administration hasn't published a timely legal opinion defending its unilateral executive action. But in fact, its constitutional case is very weak.

As commander-in-chief, the president has the right to make unilateral agreements with foreign governments concerning the treatment of military and supporting civilian personnel. Since World War II, presidents have negotiated about 100 such "status of forces" agreements throughout the world. But the standard agreement does not attempt to authorize U.S. troops to conduct offensive military operations on an ongoing basis. This additional step requires Congress or the Senate to make a formal commitment by passing a statute or ratifying a treaty.

The only potential source of authority for the prospective deal with Karzai is Congress's initial authorization of an assault on Afghanistan seven days after the 9/11 attacks. But even in that moment of panic, lawmakers did not hand President George W. Bush a blank check. They rejected the White House's demand for open-ended authority "to deter and preempt any future acts of terrorism or aggression against the United States." As David Abramowitz, chief counsel to the House Committee on Foreign Relations, later explained, "Given the breadth of activities potentially encompassed by the term ‘aggression,' the President might never have had to seek congressional authorization for the use of force to combat terrorism."

Instead, Congress gave the president a more limited mandate that focused exclusively on the 9/11 tragedy, authorizing military force only against those who "planned, authorized, committed, or aided the terrorist attacks," as well as against governments that harbored them.

Twelve years later, this mission has been accomplished. The Afghan government that "harbored" al Qaeda has long since been replaced by the Karzai regime. And as Obama emphasized in his path-breaking national security speech in May, the "[c]ore [of] al Qaeda is a shell of its former self ... not every collection of thugs that labels themselves al Qaeda will pose a credible threat to the United States." The CIA, meanwhile, reported that there are only 50 to 100 al Qaeda operatives left in all of Afghanistan.

Yet Obama's proposed agreement continues to invoke the dangers posed by "al Qaeda and its affiliates" as grounds for further American military action -- allowing administration lawyers to justify wide-ranging campaigns through expansive readings of the weasel-word "affiliates." So long as the Afghan government gives its approval, the text makes clear that the United States can continue to "conduct combat operations" through 2024, or even longer if the Afghan government consents.

Reasonable people can disagree about whether the potential benefits of further combat are worth the costs. Perhaps it makes sense to make war simply to prop up the Karzai regime against the Taliban insurgency; perhaps it will prevent al Qaeda from regaining a significant capacity to attack the United States. Or maybe additional American strikes will only succeed in further alienating the Afghan public.

That is precisely why Congress should debate and decide the matter. This was, at least, the opinion of Sens. Barack Obama and Joseph Biden when Bush made a similar unilateral effort in 2008 to extend the use of American military power beyond the term originally authorized by Congress. That case involved Iraq, not Afghanistan, and proposed an extension of three years, rather than 10. But as in the present situation, Bush moved well beyond the traditional scope of the "status of forces" agreement to gain Iraq's consent to a new round of military engagement -- ignoring vigorous opposition by leading Democrats, who denounced this dangerous exercise of executive unilateralism. Five years later, the Obama administration is on the verge of reinforcing this sad precedent of the Bush era.

There is still time for Obama to reconsider the matter. In his opening speech to the loya jirga, Karzai announced that formal Afghan ratification of the new agreement should await the outcome of the country's presidential election in April. Rather than pressing Karzai to change his mind, American negotiators should embrace this new timetable as an opening for the U.S. Congress to conduct serious debate about the merits of further engagement in Afghanistan. In his May national security speech, Obama recalled James Madison's "warning that no nation could preserve its freedom in the midst of continual warfare."  It is time to take this warning seriously, and return the question of war and peace to Congress.

AFP PHOTO/Jewel Samad


Our Last, Best Chance

If we can't ease sanctions in exchange for concessions, what was the point of pressuring Iran?

Seven thoughts about the Iran deal, in no particular order.

First, let's be clear that the package agreed to in Geneva is an interim deal -- a six-month slowdown in Iran's nuclear programs in exchange for a largely temporary easing of sanctions. The Geneva agreement will ultimately be judged on whether the parties can agree to something more comprehensive before it's all said and done. The document does outline some of the parameters of a final deal, but they are general in nature.

Rouhani wanted some early sanctions relief to show that he could bring home the bacon -- I know, that's a terrible analogy for a Muslim country -- to a populace that is economically hurting. The West didn't want to negotiate with the Iranians while they were installing more centrifuges, new centrifuges, and equipment at the Arak nuclear reactor. The deal largely accomplishes both tasks.

Second, the Iranians gave the West pretty much everything one might have asked for -- the Iranians will continue to enrich to less than 5 percent using only existing IR-1 centrifuges and limit manufacturing to replace damaged machines. Iran was never going to make a prostration before the Great Satan like Libya did in 2003, when Qaddafi agreed to give up all his weapons of mass destruction -- especially having seen how that worked out for old Muammar. The restrictions on the Iranian program are, frankly, more than could have been hoped for. Thank you, France. If we can't ease sanctions in exchange for these sorts of concessions, one really must ask what the point of pressuring Iran is.

Third, the usual suspects will complain that we've given away too much in terms of sanctions relief, but there are three things to keep in mind. (1) Much of the sanctions relief is temporary. If the Iranians collapse the deal, there will be plenty of takers for imposing tougher sanctions. (2) It isn't clear to me that the sanctions regime is indefinitely sustainable. The Iranians have had quite a bit of luck challenging sanctions in European courts, and Washington doesn't have quite the same pull in Moscow and Beijing these days. Sanctions have always been a wasting asset. It makes sense to get something for them now. (3) Moreover, if the Iranian economy starts to recover, that might be a good thing. There is a whole field of research into something called "prospect theory" that more or less boils down to a profound insight into the irrationality of human beings: we tend to fear losses more than we value gains, even if they are numerically the same. This is why your favorite basketball team waits too long to trade that promising draft pick who'll never be more than a rotation player. If the Iranian economy starts to recover, that will probably increase the pressure on Rouhani to make a deal, not decrease it.

Fourth, we now know that Deputy Secretary of State Bill Burns was conducting a backchannel negotiation with the Iranians parallel to the formal process. Some French observers have pointed out that the French foreign minister's little temper tantrum stemmed in part from his belief the Iranians had seen the U.S. draft before he did. Well, they had. Suddenly, the past six months look much more interesting. I couldn't figure out why President Obama was so reluctant to use force when Bashar al-Assad brazenly crossed his red line and gassed Syrians. And I was surprised when Damascus suddenly agreed to give up its chemical weapons, just as the Western consensus on doing something about it was falling apart. I suspect historians will conclude that we can't understand the negotiations over Syria's chemical weapons without following the behind-the-scenes negotiations between Burns and Tehran. Not that anyone else cares, but in my own totally personal and utterly irrelevant ranking of U.S. foreign service officers, Bill Burns is making a run at Dick Holbrooke's spot behind Chip Bohlen and George Kennan.

Fifth, a final deal is going to have to include at least some relationship to the broader security environment. If the Iranian regime -- or some of the Klingons within it -- tries to do something like, oh, I don't know, murder the Saudi ambassador, we could be in a lot of trouble. There is also the question of cyber attacks on Iranian facilities and the odd assassination of an Iranian scientist here or there. (Take a look at the website and you'll notice the Atomic Energy Organization of Iran is starting to name facilities after martyred scientists.) These factors aren't directly addressed in the text of the agreement, but any final deal will have to include at least a tacit understanding to knock off the rough stuff. It's way too much to ask that a nuclear deal resolve all our security concerns with the Islamic Republic of Iran, but the health of the overall relationship will matter a great deal to the sustainability of partial deals that add up to rapprochement.

Sixth, when we do get around to thinking about a final deal, I hope we'll put a lot less emphasis on this idea of "breakout" -- the Iranians quickly building a bomb before the international community can do anything about it. This seems to be the popular way to think about limiting Iran's program. The notion is helpful, but it isn't the most important factor or a sufficient measure of any agreement. If the Iranians are going to build a bomb, they aren't going to do it using a declared facility to make just one. The supreme leader isn't stupid. If he has a change of heart -- or a heart attack -- a Tehran hell bent for the bomb will dig a tunnel under a mountain and enrich the fissile material there.

What this means is that we should be far more interested in securing access to people and facilities like centrifuge workshops than imposing arbitrary restrictions on the program. (Try this thought experiment: what if Iran announced it was closing all its nuclear facilities but, since it had no nuclear program, had no need of anymore irksome visits from IAEA inspectors? Move along, nothing to inspect here. You wouldn't feel at all good about that brilliant achievement, would you?)

The most important point is that the supreme leader must believe that any decision to exercise his bomb option -- an option he already has, mind you -- will not remain secret for very long. That will reinforce what I am sure is his sincerely held religious aversion to nuclear weapons.

Seventh, there are a number of wild cards in the form of various constituencies that do not want an agreement, including in no particular order: Benjamin Netanyahu, some of President Obama's political opponents in the Republican Party, and the hawks in Iran's parliament. Watching these various constituencies attempt to sabotage negotiations over the next six months will be interesting. Who knows what Netanyahu will do, although Israel's stock market apparently rallied on news of the deal. The text of the agreement actually makes parallel references to "the respective roles of the President and the Congress" and "respective roles of the President and the Majlis (Iranian parliament)," which I suspect is a polite recognition that there are less enlightened political forces back home in both capitals who aren't quite as moved by the mountain air in Geneva to find a peaceful way forward. Senator Inhofe is surely delighted to know that Wendy Sherman thinks he has an Iranian doppelganger in a beard and turban. The parties can do their best to design a deal that cuts out the various hardliners, but I don't think the opponents will take this quietly. A good deal is one that is robust to sabotage.

All in all, the interim agreement is a good deal. The parties have given themselves a six-month window to see if there is some way to impose a verifiable gap between Iran's extant nuclear weapons option and any decision to exercise that option, while easing Iran's isolation and avoiding another war in the Middle East. I can't say I am ever optimistic about negotiations, but this is probably our collected last, best chance. Not bad for government work.