News from Representative Richard Nugent

Dear Friends,

Couple of quick updates this week:

First, on the Ebola question. As I’m sure you’ve seen by now, the U.S. has its first confirmed case of Ebola within our borders. As I’m sure you’ve also seen, the man traveled from Liberia, told a nurse at the hospital where he’d come from and told her what symptoms he was experiencing. Because of some failure, perhaps reportedly a record-keeping failure, medical staff sent him home with an antibiotic. They’re working double-time to figure out how many people he may have had contact with. Needless to say, epidemics grow at an exponential rate and trapping them early is critical.

We had a conference call on Thursday with the Centers for Disease Control in Atlanta about the situation. CDC has been providing guidance to hospitals since August on how to spot potential Ebola patients and what protocols should be taken in the event that one should turn up. Those protocols haven’t exactly been followed. I have drafted an official inquiry to the head of the CDC and to the White House asking some specific follow up questions on both the protocols in place and what their reasoning is regarding travel bans from affected countries. I imagine a number of my colleagues will join me in that effort and I will keep you posted as it develops.

For now, suffice it to say that while there is a huge difference between our health system in America and the health system in Sierra Leone, it doesn’t mean we can rest on our laurels. Given the inherent threat we face from global pandemics (and the desire of our enemies to launch a biological attack here), the government’s response to a slow-moving threat like Ebola needs to be flawless. So far, I’m not convinced.

I should have more to report on that next week.

In the meantime, I wanted to give you an update on Iraq and Syria. This will get a little bit into the constitutional weeds, but please bear with me. It’s important.

In our system of government, war is a shared responsibility between the Executive and Congress. From the very beginning, America’s Founding Fathers recognized that for efficiency’s sake, the Commander-in-Chief would need a good deal of flexibility on the actual prosecution of war. That is to say, they didn’t think Congress should conduct war by committee. They did not, however, want the Commander-in-Chief to be able to declare war all by himself. The Founders rightly felt the nation should have a debate and ultimately decide for itself weather or not to commit its sons and daughters to war. So, they left that power to Congress. It’s a delicate but important balance.

In response to the slow escalation and even slower withdrawal from Vietnam, Congress realized that it needed to assert itself more in preventing such a conflict from ‘accidentally’ happening again without Congress’ explicit authorization. The solution was the War Powers Act of 1973. It had to pass with a two-thirds majority in order to overcome a presidential veto (Presidents like their power).

In short, the War Powers Act says (and I’m paraphrasing here) the President is authorized to respond in the event of an emergency where there is a clear threat to national security, but only for sixty days. If Congress does not provide explicit authorization for military action within that sixty-day period, the President then has an additional thirty days to remove U.S. forces and cease all military action. Bottom line - absent Congressional authorization, the President can only conduct military operations for a maximum of ninety days without breaking the law.

Last month, President Obama sent Congress a letter, pursuant to the War Powers Act, officially notifying us that he had begun conducting airstrikes in Iraq. That letter (or more precisely the airstrikes themselves) started the sixty-day clock. One thing that’s important to note - in both the case of Libya a couple years ago and in the case of Syrian airstrikes now, the President never provided that official notification.

I may be old-fashioned, but in the case of Libya, I did not feel that the President had proper authorization to proceed and I argued loudly that Congress should stand up for its constitutional rights and check him. In that case, hostilities ceased quickly and the issue pretty well subsided. But in the case of Syria, the airstrikes will almost certainly continue for some time. It’s time we have that discussion.

Without getting into any classified details, it’s important to know from the start that Syrian air defenses are Russian-made systems. They are not old rinky-dink air defenses. They are sophisticated and they are dangerous to our pilots. These airstrikes are not without risk. Furthermore, no matter how much we may detest President Assad, Syria is a sovereign nation. Where I come from, launching missiles into somebody’s backyard constitutes an act of war. Therefore, I believe that the President has the constitutional responsibility to request proper authorization from Congress. He has started a war with ISIL and technically speaking – he has started a war with Syria. That’s a big deal and Congress has the constitutional responsibility to insist on a request for authorization by the President. It then has a responsibility to consider it.

While many of us question the effectiveness of a long-term strategy relying on airstrikes in Syria, polls suggest the country is largely supportive of those strike. So, in other words, this isn’t just about the airstrikes themselves. Frankly, the President probably won’t have much trouble gaining the authorization once he requests it. But to treat the process of submitting a presidential request, debating it in Congress, and holding an up-or-down vote as an unnecessary formality is treating the Constitution itself as an unnecessary formality - no longer needed in a modern-day world. I think that is a complete and utter abdication of duty and Congress needs to step up to the plate. The simple fact that a military action is popular does not mean we should just shrug as a nation and fail to deliberate properly as our Constitution demands. If we don’t take that step, then future presidents can use this as a precedent to expand their war powers beyond what the Founders intended.

Fundamentally, when it comes to a question of war and peace and the life and death of our service members, we owe it to ourselves, to those who came before us, and to future generations of Americans to have a debate, to have a vote, and to commit the use of military force with our eyes wide open. Anything short of that betrays the trust that our Founding Fathers placed in us. It might take a few hours, and a bunch of politicians may have to actually put themselves on the record, but in the final analysis, is it not worth that trouble? Do we not owe that much to the people who risked and lost everything just to give us that right? I think we do. And I’m doing more than just talking about it. More on that next week…

Rich Nugent
Member of Congress

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