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The Belated Conversion of Senator Rand Paul
This week, my Defining Ideas column (later picked up by Jennifer Rubin) contained a no-holds-barred attack on Senator Rand Paul’s claims in the Wall Street Journal about “How U.S. Interventionists Abetted the Rise of ISIS.” Just yesterday, I encountered a new piece by Paul in Time, in which he backed off the position that he took the week before and delivered (overdue) bellicose words against ISIS for its brutal and horrific actions in both Syria and Iraq. I will leave it to the philosophers to figure out what position Paul holds when he writes, “I am not an isolationist, nor am I an interventionist. I look at the world, and consider war, realistically and constitutionally.”
I appreciate the “realistically,” but am less confident about his “constitutionally.” What Paul means by that statement is that he thinks that it is appropriate to get Congress to issue a declaration of war before taking action against ISIS.
The ostensible justification for that view is that, under our system of separation of powers, the President, as Commander-in-Chief, has to wait for Congress to commit the nation to war before he can properly lead the war effort. On this issue, however, there are added complexities that have to be taken into account.
The first of these is that a declaration of war is not necessary against those who first attack us. It was widely understood from the earliest days of the nation that in these emergency situations, the President need not wait for a declaration of war to defend American citizens and interests that are in imminent peril. There is little doubt in my mind that President Obama could have used all military force necessary to protect journalists James Foley and Steven Sotloff. It is difficult to know what other Americans are now in jeopardy from ISIS, but it is surely likely that the President could commit American forces to protect them. Nor does it seem outlandish to insist that ISIS’s ability to strike at any time in multiple locations counts as an inchoate emergency that might well justify the use of force.
In this scenario, the role of Congress comes in later, when it can refuse appropriations to continue the effort that has begun unilaterally. Historically, as Joseph Lieberman has noted in the Wall Street Journal, the constitutional practice has given greater weight to presidential discretion than the unadorned constitutional text. It turns out that the need for expedience may be greater than the Framers had intended, which has led to an uneasy set of accommodations that have propped up the current practice.
There is also the question of whether a kind of global declaration is available to the President right now under the Authorization to Use Military Force (AUMF), whose central provision states:
Section 2 – Authorization For Use of United States Armed Forces
(a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
It is an interesting question of statutory construction as to whether ISIS, which is an offshoot of al Qaeda, falls under this general authorization. I think that the correct answer is yes, as the President’s ability to defend American interests overseas cannot be made dependent on the organizational charts of the groups that have taken (and that continue to threaten) action against the United States. The desire to prevent future acts of terrorism does not have any built-in time limit. The AUMF seems to meet all applicable constitutional standards, especially given that Congress could revoke that power at any time.
Right now, Senator Paul is in the glare of publicity because of his evident, if unacknowledged, flip-flop on the use of force against Al-Qaeda. No one doubts that buy-in from Congress is essential for a successful long-term effort. Right now, however, time is of the essence. The President has not let any constitutional issues stop his effective, if limited, use of air power against ISIS. It would be wrong for Paul to use the constitutional arguments to slow down an effective response on this question in ways that could vindicate his excessive non-interventionism though the back door. No one knows how long his current conversion will last. Regardless, it is clear that he overstates the constitutional limitations on an effective and immediate military response to ISIS and its allies.
Published in General
This is what worries me about Sen. Paul. Far from being cautious I think his instincts are decidedly retreatist. Only political considerations make him consider more proactive measures. Thus on foreign policy I fear he is another Obama.
To me, the most distressing part of Paul’s flip flop is his refusal to take responsibility. More than any other man outside the White House, Paul was responsible for the failure of the US to support the Free Syrian Army after Assad’s chemical weapon attack, a failure that dramatically empowered ISIS. Instead, he suggests that the problem was too much support, both blaming America for creating a problem that America did not create and surrendering responsibility for himself.
Obama seems better on this stuff than Paul, and more pro-American in his instincts. Obviously, foreign policy isn’t the only important issue, and I’d support Rand over Hillary in a heartbeat. Paul has also been better at supporting conservatives than his father was. I’m not against Paul in general, but he has a problem with the substance on this issue.
So how should we refer to the recurring distinction between the stances of Paul and Epstein in this regard? Doc Epstein must consistently distance himself from the trappings of Paulist policy recommendations — and that’s just from *Rand* Paul, who is not crazy.
I uh *ahem!* have a suggestion, which is not new. I would say that while Rand Paul is a conservative libertarian, Epstein is actually a libertarian conservative. That is, the overlap between the unadorned single-noun political positions is easily subdivided along predictable lines, and that while Epstein is undoubtedly warmed by the libertarian sun, he still orbits the conservative star. It is my contention that Epstein is a conservative, and that his libertarianism is only true in the context of the larger world of conservatives. In the universe of political positions, he is a conservative.
Why should I care? Because I feel that we are missing an integral wing of conservatism which has been erroneously defined out of the tent. Epstein must continue to describe his differences with folks like Paul because he is not in the other tent at all — he is between them, and is a much better fit in this one.