As you probably know, I wrote more than a dozen pieces advising the president not to involve U.S. troops in Libya’s civil war. What you probably don’t know is that I am in favor of a strict interpretation of the War Powers Resolution that requires the president to notify Congress within 48 hours of the onset of military operations and to seek authorization for military force within 60 days.
So, it may surprise you that I actually support what John Boehner is doing in the House. Boehner is trying to prevent a resolution from passing that would require the president to disengage from NATO operations in Libya within 15 days.
House Republican leaders believe that if the resolution being offered by Rep. Dennis Kucinich, D-Ohio — requiring the president to withdraw U.S. Armed Forces from participation in the NATO mission in Libya within 15 days – had come up yesterday it would have passed.
Instead the Kucinich bill comes up tomorrow. With the Boehner bill an alternative.
Boehner’s alternative has softer language, but it makes clear that the president has not sought nor received authorization to use military force in Libya.
The resolution states: “The President has not sought, and Congress has not provided, authorization for the introduction or continued involvement of the United States Armed Forces in Libya. Congress has the constitutional prerogative to withhold funding for any unauthorized use of the United States Armed Forces, including for unauthorized activities regarding Libya.”
In arguing for his resolution over Kucinich’s, Boehner told his caucus that it would be reprehensible and irresponsible to abandon our NATO allies after they have stuck with us in Afghanistan for a decade. He’s right.
We should not have gotten involved in Libya, but we made a commitment and we ought to stick by that commitment. Congress is correct to assert its prerogatives and to warn the administration that it expects an explicit exit strategy and will not tolerate mission-creep. It should reject Kucinich’s resolution and support Boehner’s.
Congress is correct to assert its prerogatives and to warn the administration that it expects an explicit exit strategy and will not tolerate mission-creep.
We’ve already gone past a point of no-return. Down the rabbit hole. Whatever you want to call it.
See this?
I know. Is someone going to investigate Palin’s trip soon?
Are you talking about the Stealing Thunder Bus Tour and launching an Arizona Senate race trip?
That commitment was “days, not weeks” when it was pronounced months ago.
So, your position is, Congress should not demand the Administration leave a war Congress never declared. It should just send a strongly worded resolution warning that Congress might in the future object.
Isn’t this like saying, since we’re in Iraq and Afghanistan now, we can never leave? Oh, right, that’s Administration policy too. Sure wouldn’t want to end a war, now, would we?
Yes. Congress should not force us to abandon the commitment we made to NATO but they should assert their right to do so.
Their right to do so at what point? Why is it bad to leave now, instead of six months, or four years, or twenty years from now? Because the ponies haven’t arrived yet? Maybe in a Friedman unit or two….
Further, it’s Congress’s job to vote on whether or not to go to war. I don’t recall when NATO got the Constitutional power to override them.
This is not Vietnam. It isn’t even Iraq.
The morality of this mission isn’t in much question. Only the wisdom and effectiveness is in debate.
Gaddafi isn’t going to live another twenty years.
Congress should monitor the situation and keep the administration on a short leash. Part of keeping them on a short leash is occasionally taking symbolic votes that show how little support there is for the policy. One day, maybe Congress will lose its patience. It happened in Vietnam, eventually. But Libya isn’t Vietnam and our involvement, for now, remains limited and justifiable.
NATO asked for our help. It would have been difficult to say no but we should have done it. Since we said yes, we ought to keep our word. If not, we are not an ally worth having.
But the GOP, and Versailles, keep telling us that we are broke!!
Actually, the “days not weeks” statement was about the United States leading the combat role, and indeed, that role did only last “days not weeks.”
Not a reality-based comment, I’m afraid.
The WH was really stupid for not asking Congress for authorization. They probably would have gotten it.
Just an unforced error, really. Along with getting involved in the first place.
Well, in the absence of a stained blue dress ..
I’m reminded of the old Seinfeld line about the show being about – nothing. All Boehner’s resolution does is – nothing but restate the obvious. At least Kucinich’s resolution does something.
If Obama had waited around for Congress to get its act together Gadafi’s forces would have retaken the rebel areas. Thankfully Obama saw the need to act and did so before it was too late. If Congress really has any concerns other than ducking the issue and covering their own butts, I haven’t seen it.
I like the way the Congressional resolution is worded to insist that Obama…do what he has said he intends to do all along. No ground troops, eh? Wow, that’s really taking Obama to the wood shed!
I’m not sure I understand what your lingering concern is? That we’ll mangle the reconstruction? Probably. I can’t imagine the US and Europe trying to do it any other way but on the cheap.
But there aren’t any military concerns. This thing’s barely a war for the NATO side. Libya’s not a dense country, so NATO has pretty much been able to systematically obliterate Qaddafi’s forces with next to no civilian casualties. I don’t understand why you would still believe it was unwise to get involved?
You’re jumping ahead to reconstruction already?
How can you say we shouldn’t have gone into Libya in the first place but say we are obligated to stay because they hung with us in Afghanistan?
That’s a good reason to stay but not a good reason to go in in the first place?
What exactly has gone so horribly wrong in Libya that has people wringing their hands? The Russians have gone in to coerce Daffy, his soldiers, officers, and other officials are defecting.
We shouldn’t have gotten involved in Libya because it’s a giant mess and now we’re obligated to take some responsibility for what happens there. It wasn’t immoral to get involved, just reckless.
But, once we made a commitment to our NATO partners, we have an obligation to keep our word. As much as possible, we should leave this to our European buddies, but we shouldn’t renege on our promises.
I’m not buying your logic here. If getting involved in Libya wasn’t a good idea and it still isn’t worth it, then it isn’t as if the U.S. can’t work within NATO to end the intervention. IMO, the reason the U.S. and NATO aren’t leaving is that it’s better to fight now to end Gadafi’s rule rather than leave and let him retake all of Libya with all the consequences that would follow.
You did a little trick there when you said it “still isn’t worth it.”
I never said that. In fact, I’m saying the opposite. Our national interests are better served by keeping our commitment in this case than in breaking it. However, our interests would have been best served by not making the commitment. There is no contradiction there.
I’m not talking about the commitment to NATO, but the commitment to the mission. Surely the U.S. as a member of NATO can object to the mission if it isn’t seen to be in our interest? It isn’t as if there haven’t been similar objections from NATO members about the wisdom of the Afghan mission.
Our NATO partners felt that this was in their interests. Once committed, it’s definitely in their interests not to stop until Gaddafi is gone. I’m not saying that we couldn’t or shouldn’t have tried to change their minds. But they asked for our blessing and our assistance and they received it. We should not abandon them now.
Most of the damage to our national interests is already done, provided we don’t get entangled in the reconstruction efforts. As long as we keep this mainly a European affair, we should be okay.
But, votes like this one are a demonstration of how little appetite there is domestically for this mission, which is one reason why I opposed it from the beginning.
On balance, however, I agree with this resolution. It doesn’t tie our hands but it sends a warning and it asserts again that Congress has a say in the commitment of our military.
The Libyan operation is a weird one for Congress to suddenly discover the War Powers Act on. Afghanistan is the more pressing war to shut down–and that is on the grounds that leaving is what it is going to take to effectively gain our stated objectives of stability in Afghanistan.
There are complications with the Libyan situation that did not occur with Afghanistan and with the big FU that Bush gave the UN on Iraq. Those complications have to do with whether the US seriously wants the UN to be the force that keeps the peace. And do NATO obligations apply as much to us when other countries want to take action that ensures their national security as when we want them to take action on behalf of our (cough, Afghanistan) national security?
If we’re going to require the President to withdraw from obligations, maybe we should use this occasion to:
Leave Iraq for good
Leave Afghanistan
Withdraw the Fifth Fleet from Bahrain
Close all but one base in Europe and turn the others over to the host countries
Withdraw from Okinawa, a continual source of conflict with the Japanese government
Cease operations in Pakistan
Cease covert operations in Colombia and any other South American countries
Turn the facilities at Diego Garcia over to the UK to operate
End military aid to Israel
I don’t see that happening because this issue is not about the War Powers Act or oversight over the Executive Branch at all. It is a disagreement over a shift in US policy from unilateralism to operating within the framework of international institutions. (Leaving Kucinich’s near absolute anti-war reasons for initiating this resolution) And it is occurring exactly at the moment that the situation in Libya is such that it looks like Gaddafi will be going sooner rather than later. If the Obama administration succeeds in killing Osama bin Laden AND removing Gaddafi from power in such a way that he joins Ratko Mladic at the Hague, Republican charges that Democrats are soft on national security get substantially weakened.
What has been striking about Libya is how well thus far the US has studiously avoided mission creep. The French, who have much to lose domestically from a flood of North African refugees (with Strauss-Kahn standing trial, the major opposition to Sarkozy is anti-immigrant National Front candidate Marine le Pen) have been the one expanding the tactics, if not the mission.
And what is clear is the Transitional National Council’s determination that there be no foreign troops on the ground to divert attention from Gaddafi’s war of terror.
Boehner’s resolution is somewhat dangerous. The president did consult with members of Congress before he made the commitment. To assert that “The President has not sought, and Congress has not provided, authorization for the introduction…of the United State Armed Forces in Libya” is in fact false. He did, informally, and they provided it. The resolution should make clear that what Congress wants to see now is a formal request for continued authorization of US activities in Libya. The way the Boehner resolution has been worded could be a point in a resolution of impeachment.
This resolution is not urgent. A full debate might divert from the debt ceiling kabuki until the financial condition is about to hit the wall and Wall Street starts leaning on their bought members of Congress. And with a little luck could be moot when it comes to a vote.
“What has been striking about Libya is how well thus far the US has studiously avoided mission creep.”
Thank you!
I continually amazed by how little connection the criticisms of this operation have to the reality of what is happening. The American mission is smaller today than it was on the first day of the operation, and yet it is conventional wisdom that we’ve seen mission creep. I’m constantly assured that this is a “war for oil,” and yet our companies were pumping and shipping oil before the UN vote, and the result of our support has been to shut them down. I’m constantly told about this “entrenched stalemate” (quagmire! quagmire!), despite the fact that the government forces are being steadily pushed back from Misurata and have lost the Berber region on the West, while the defections continue as their military forces are being steadily eroded.
What happened to the reality-based community? I see a whole lot of people seem to think that all they need in order to understand the situation is to have the proper ideological outlook, and they can just assume that the facts will be what they want them to be.
I may be wrong so I hope someone will correct me if that is the case but I do not believe that the President needs Congressional authority to commit our forces in the Libyan action. Here is my reasoning.
The UN Security Council authorized the use of force in Libya. According to Article VI of the Constitution, treaties (like our treaty as a UN signatory) are made supreme law of the land. Here is the text.
“The Constitution and the laws of the United States, which shall be made in pursuance thereof, and all treaties made or which shall be made, under the authority of the United States shall be the supreme law of the land.”
My understanding is also that in December of 1945 an amendment was offered in the Senate that would have required a separate vote of the Congress before the US could commit the military to a UN action. This amendment was voted down 65-9.
I don’t see that the War Powers Act applies in this case but I’m sure that someone here will provide another opinion.
We are not obligated nor authorized to do whatever the UN Security Council approves. Is Ghana or Indonesia free to introduce troops in Libya without any debate because the UN authorized force?
We are obligated to abide by UN Security Council resolutions if they apply to us. This one doesn’t.
The War Powers Resolution is controversial as a separations of power issue, but assuming it has the force of law, the president is obligated to follow it, and he hasn’t.
I’m not suggesting that he be impeached over it, but the rebuke is deserved and sets an important precedent.
That’s what Nadler said on the House floor during the debate over this resolution. He’s right.
The President has the authority but is not obligated.
Here is the resolution. You can read it for yourself and see if you think it authorizes Ghana and Indonesia to introduce troops. From my reading, they would need to notify the Secretary General and act in cooperation with the Secretary General.
http://www.un.org/News/Press/docs/2011/sc10200.doc.htm
And again, the Senate ratified the UN Charter (it is a treaty obligation!) and the matter of whether or not the President would have to seek authority from the Congress to act in accordance with a UN authorized action was proposed in 1945 as an amendment to the ratification of the UN Charter and it was defeated overwhelmingly.
Nadler’s comments, while dramatic do not apply to this case. We are not trusting Kings, but rather acting in concert with a treaty to which we are a signatory, in concert with other nations and in accordance with international law.
This link says it much more clearly than I have.
http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=433×635737
And here is the text.
http://avalon.law.yale.edu/20th_century/decad031.asp
Specifically, in Section 6:
“The President shall not be deemed to require the authorization of the Congress to make available to the Security Council on its call in order to take action under article 42 of said Charter and pursuant to such special agreement or agreements the armed forces, facilities, or assistance provided for therein: Provided, That nothing herein contained shall be construed as an authorization to tile President by the Congress to make available to the Security Council for such purpose armed forces, facilities, or assistance in addition to the forces, facilities, and assistance provided for in such special agreement or agreements.”
Article 42 of the UN Charter:
“Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.”
I personally want the UN to have sufficient bite for its bark but that could be because my best friend has spent her career doing child protection for the UNHCR and now UNICEF and I have heard far too many stories of atrocities.
I think you’re getting mixed up in different things.
The law you cite is from 1945 and it authorizes the president to respond to a UNSC resolution calling for arms. Nothing in the War Powers Resolution prevents the president from providing troops to the UN.
What the War Powers Resolution says is that the president must notify Congress within 48 hours that it has begun using military force, and that the president must seek authorization from Congress if he wants to use them for more than 60 days. If he needs an extra 30 days to withdraw the troops, he can seek those 30 days.
In other words, these laws are not really in conflict. However, the president cannot appeal to the older law to ignore the newer one.
The War Powers Resolution requires an authorization from Congress.
The UN Participation Act is an authorization from Congress.
You’re right, the two are not in conflict.
The resolution specifically prohibits the introduction of ground troops in Libya or threatening the territorial integrity of Libya. Therefore Ghana or Indonesia would be violating the provisions of the resolution if they did that. And given that there is an implementing organizations of nations that includes but is not limited to NATO, Ghana or Indonesia would be expected to coordinate their actions through that group.
I think the issue is the Congress has to demonstrate that they weren’t consulted. I’m sure that what Boehner would like would be for President Obama himself to be grilled by the House Foreign Affairs Committee, Issa’s House Oversight Committee, and the House Armed Services Committee in the name of formal authorization. And have a big “Obama is a loose cannon” circus. And it’s up to Rep. Nadler to show how it is that Obama has been acting like a dictator of foreign policy.
Mistaking this Congressional gamesmanship as being a serious consideration of the actual process by which Congress and the President work together on foreign policy is to mistake kabuki for substance.
If push comes to shove, Obama is perfectly positioned to leave finishing the job to the British, French, and the rest of NATO plus, Turkey, Qatar, UAE, and now Russia. Which would give Cameron, Sarkozy, Catherine Ashton, Dmitri Medvedev, and Ban Ki-moon receiving credit when the operation is successful. The big political losers in this scenario–Hillary Clinton and Susan Rice.
From Boehner’s perspective, this is another case of denying Obama the credit for success. In contrast, Obama’s benign neglect and behind-the-scenes pressure of Yemen having failed to persuade Saleh to leave, the absence of US involvement will allow a relatively quick overthrow of Saleh by his tribe’s rival politicians. And the Formula One coming to Bahrain might exert more pressure for reform there than idle threats of removing the Fifth Fleet to Qatar.
What about Obama’s Mideast policy does Rep. Nadler think has been dictated to Congress?
The rebuke is not deserved, but a formal request for formal authorization with serious purpose would be helpful. Unfortunately, that’s not going to happen in the Boehner’s Congress.
you both misinterpreted my comment re: Ghana and Indonesia. I meant that their leaders couldn’t send troops to Libya based on some UN Resolution absent consultation with their representatives.
Let me put it this way.
The UN Security Council can make rulings that make war legal under international law. We can rely on those rulings but just because a war has been legalized under international law does not obligate or authorize any president to participate.
Now, there is provision being cited here that says the president does not need to seek permission from Congress to send troops on a UNSC-sanctioned mission. That’s a provision from the 1940’s.
The War Powers Resolution is from 1973 and clearly supersedes the older law.
The two laws are not in tight opposition anyway.
The WPR doesn’t prohibit the use of force. It limits the duration.
Interesting that the powers of the Executive in declaring vs. making war have been argued since the Continental Congress. Justice Washington even ruled on this and made distinction between solemn wars and imperfect wars (of which there had been many) including Adams using the Navy to prevent France from commandeering US commercial shipping because of our trade with Britain, and Jefferson’s involvement with the Barbary Pirates.
There is much case law concerning the War Powers Resolution and the first Gulf War, Haiti, etc. When I am back at work on Monday and able to access Lexis Nexis I could provide some examples–if we really want to get that nerdy.
And of course the original War Powers Act of 1941 was fresh in the minds of Congress, as was the reason for the failure of the League of Nations, when the Senate explicitly decided not to require the President to seek congressional authority for UNSC military action.
Now, with the War Powers Resolution of 1973 there is the very interesting 1547 d(1) which says
(d) Constitutional authorities or existing treaties unaffected; construction against grant of Presidential authority respecting use of United States Armed Forces
Nothing in this chapter–
(1) is intended to alter the constitutional authority of the Congress or of the President, or the provisions of existing treaties;
But if you look at the Resolution you will see that it conflicts with 1547 a (2). So here is the House Report analysis on section 1547 “…reassures United States allies that passage of the resolution will not affect United States obligations under mutual defense agreements and other treaties to which the United States is a party.”
And as I have stated repeatedly, The US ratification of the UN Charter is a treaty obligation.
you are doing great research but you’re missing something extremely basic.
No one is saying that sending our troops to Libya (or the skies over Libya) was illegal under domestic or international law. If a crime has been committed it is only in failing to a) notify Congress within 48 hours b) ask for authority within 60 days and/or c) not ask for a 30-day extension.
In other words, notwithstanding anything the UNSC did or did not do, does the president have to abide by the WPR?
Secondly, you are conflating the signing of a treaty with obligations to make war. We are under no obligation to make war even if authorized to do so by the UNSC. Only a few countries are fighting Gaddafi. Are the rest of the UN members skirting their duties?
No. And just as we are under no obligation to fight, the president does not enjoy any waiver from Congress because the action is UN-sanctioned.
Most notably, the administration has not advanced your argument in its own defense. It hasn’t really offered much cogent defense at all. I mean, they just aren’t even trying very hard at all.
They absolutely needed a brush-back pitch on this. At a minimum.
I get what you are saying but I don’t think that you understand my view that there is no need for ANY authorization by Congress–not after 60 days, not with a 30 day extension, not in a box, not with a fox, not ever. The President did inform (consult) the Congress within 48 hours , sending two letters, and has provided Congress with regular briefings. They have been fully informed and continue to be. That is all that is required.
There is no need for a formal declaration of war. There is no need to invoke the War Powers Act. This is something which the President is able to determine as Executive and Commander in Chief because it is explicitly allowed by our ratification of the UN Charter. When the War Powers Resolution of 1973 states in Section 1547 d (1) that
“Nothing in this chapter– (1) is intended to alter the constitutional authority of the Congress or of the President, or the provisions of existing treaties” it is affirming the authority given to the President when the Senate ratified the UN Charter. Furthermore the Senate carefully considered exactly this situation while debating ratification of the UN charter in 1945 (four years after the first War Powers Act and with the intention to provide the UN some teeth in order that wars be prevented) and explicitly decided not to require the President to seek authorization from Congress in order to take military action in concert with UN Security Council Resolutions involving use of coercive means including economic and military actions.
Clearly we disagree in our interpretation of the War Powers Resolution but I think that the deliberations of Madison and the framers in choosing the language “declare war” vs “make war”, Supreme court rulings going back to Justice Washington, the language of WPR section 1547 d(1) the House Report explaining this section of the 1973 WPR, etc support my interpretation. I also think that the practical result of your interpretation would turn the UN into the League of Nations and would do great harm to the cause of human rights, something which our ratification of the UN Charter and the framing of the UN Charter intentionally sought to prevent.
To state this simply, I believe that the President IS abiding by the War Powers Resolution which does NOT require him to seek authorization by Congress. It is my opinion that the WPR, specifically 1547 d(1) affirms the supremacy of existing treaties. And because military action as part of a UNSC resolution is authorized by our ratification of the UN Charter (a treaty), the authorization requirements of the WPR do not apply. They are null and void. I also do not believe that we are obligated to take military action because it is resolved by the UNSC. And no, it does not require all countries to participate. It also does not exclude other countries from participating.
As a permanent member of the UNSC and one of its most influential and powerful members, we have chosen (we are not obliged) to be one of the leaders of this action. I see it as a positive development and one that could lead to real breakthroughs in preventing human rights abuses, war crimes, and genocides. I further see it as a good sign that we are playing a supporting role in Libya and that there really has been no mission creep on our part. This is the way the UN Security Council was intended to function even though it was long frustrated by the animosity between the US and Soviet Union during the Cold War.
The President has stated repeatedly and consistently that there is no requirement to seek Congressional authorization and I agree.
Your argument is well-reasoned and well-documented, but it just doesn’t work for me.
You are still relying on the fact that we agreed to join the UN (signed a treaty to that effect) as somehow making the WPR null and void in this case. I see no logical connection at all.
Congress did decide, as you cite, that the president would not need special authorization to engage in war authorized by the UNSC.
And the WPR stated, in what is a separate issue, that the resolution would not affect treaty obligations.
That seems to create a logical thread, but it doesn’t.
The WPR does not attempt to bind the president’s hand when it comes to starting military action, only continuing it.
He doesn’t need the cover of treaty obligations to start a war. But he can’t rely on treaty obligations to continue one when there is no treaty obligation to be in one in the first place.
You seem to think that the president would be violating the treaty we signed to join the UN if he didn’t agree to fight in Libya.
He wouldn’t be. Since he has no competing claim, he has no argument for refusing to abide by the WPR.
Look at it this way.
Congress decided in the aftermath of the Gulf of Tonkin fiasco that no administration should be able to commit the country to war without the consensus of Congress. It doesn’t matter what the Congress thought in 1945. By 1973, they had more experience. They don’t want the president to have to ask for permission to help enforce UN Security Council resolutions, they want him or her to justify it within 60 days and win approval for the funding.
That’s not too much to ask.
Where we differ is that you are saying that the WPR reigns in the President at the point of continuing past the initial 60 days or 60 days plus the 30 day extension.
What I am saying is that section 1547 d(1) of the 1973 WPR provides a huge loop hole, if you will. It asserts that the entire WPR does not interfere with existing treaties. It is because of this loop hole contained in the 1973 WPR that the President does not need to meet the notification requirements of the WPR. It is because of this loop hole that the President only needs to satisfy the requirements of the existing treaty (in this case the UN Charter) as ratified by the Senate. Section 1547 d (i) declares existing treaties to supercede the WPR. The Senate clearly intended for the President to be able to take military action as part of a UNSC resolution without seeking Congressional approval when they ratified the UN Charter and that is the law that is in effect because of the WPR loop hole clause.
Were the President to use military force because of an attack or even to prevent a humanitarian crisis that was not part of a UNSC sanctioned operation, or covered by an existing treaty, then you would be correct and the President would be required to notify Congress within 48 hours and to get Congressional authorization within 60 days with the option of a 30 day extension. In this scenario there would be no treaty in place rendering the authorization requirements of the 1973 WPR null and void.
If Congress had not inserted the 1547 d(1) loophole in 1973 they would have created a huge mess especially with all of the alliances and treaties created during the Cold War that essentially bound our fate to Europe and reassured Europe that we would not abandon them to Soviet aggression.
I have no idea where you get the idea that the President would be violating the UN Charter if he chose not to fight in Libya. I state exactly the opposite very clearly many times in this thread. This makes no sense even with a basic understanding of how the Security Council works. The President would not be in violation of the UN Charter for refusing to fight. If the President didn’t want to take action in Libya he could have instructed Ambassador Rice to veto the Resolution–as we have the ability to do. He could have instructed her to support a resolution to use military force in an operation to be conducted by member states and have the US not participate. He could at any time withdraw our military support and let the remaining NATO partners finish.
It sounds like you are confusing my interpretation of the 1973 WPR as having a loop hole clause that asserts the supremacy of treaties with some sort of obligation to join in a UNSC military action. The UN Charter does not oblige member states to participate in military actions. It allows them to participate. Big difference. I am simply saying that the 1973 WPR contains a provision that says the President must follow the requirements of this War Powers Resolution UNLESS there is an existing treaty that has different requirements. The WPR loop hole clause gives the existing treaty precedence.
The 1973 WPR probably doesn’t meet Constitutional muster anyway and I think it was mostly sound and fury signifying nothing. The Constitution without the WPR provided adequate remedy for Congress to halt a war and to check the power of the President. All Congress had to do was to stop funding the Vietnam War. They control the purse strings. Congress always has this option. They had it in Korea, Vietnam, Iraq, Haiti, Afghanistan, Iraq… They still have this option.
This is where the decision of the framers is relevant. They were biased in favor of the Executive having more latitude in international affairs. They chose the language “declare war” regarding Congressional War Powers to differentiate a formal, solemn, war from the many times it would be necessary for the President to “make war” in the case of attack, imminent threat, “police actions” etc. This was in fact done by Presidents hundreds of times before the first War Powers Act. Think Jefferson and the Pirates, Adams and the “non-war” with the French. This is where Justice Washington’s Supreme Court Decision comes in to play.
Scenario 1
President takes military action…….1973 WPR takes effect…..President notifies Congress within 48 hours……President has 60 or 60+30 to get Congressional authority…..Congress decides to authorize or not, declare war or not, fund or defund.
Scenario 2
President takes military action as authorized by an existing treaty to which we are a party…….President informs Congress……1973 WPR section 1547 d(1) says President must comply with the rules of the treaty.
I understand your argument just fine.
I don’t think the fact that we signed a treaty to join the UN means that we have any treaty obligation to use force. I don’t know how many more ways there are to say it.
Let me try one.
Let’s say, hypothetically, that we had a mutual-defense pact with Israel. And let’s say that Israel was attacked by Iranian missiles. We would, under that scenario, have a treaty obligation to join Israel in its war with Iran. If Congress decided that they didn’t want to honor that treaty, the president would still be in compliance with the law if he didn’t ask for permission to continue the fight past 60-90 days.
The UN treaty, by contrast, creates no such obligation. It creates a mechanism by which war can made on a legal basis under international law, but it obliges no one to make war. If Congress does not want the country to participate in a UN-sanctioned war it can cut off funding for that war without violating any treaty.
On this, your argument fails.
But, seriously, if your argument had actual merit, the administration would be the first to use it.
Booman,
I have not said that we are obliged…we are not obliged to act because of our UN Charter. We are allowed to act. You keep saying that my argument fails because you keep misstating it. We agree completely that we are under no treaty OBLIGATION to use force. You don’t need to keep saying it because it is irrelevant to my argument.
I am saying quite simply that the 1973 WPR has a huge loop hole clause that says that existing treaties (in this case the existing treaty is the UN Charter) are the applicable rules of the road if you will. As long as the Executive is acting in accordance with the rules of the road, in this case the UN Charter, he is acting legally. If the Executive were not acting in accordance with an existing treaty, then the 1973 WPR provides the rules of the road.
“The UN treaty, by contrast, creates no such obligation. It creates a mechanism by which war can made on a legal basis under international law, but it obliges no one to make war. If Congress does not want the country to participate in a UN-sanctioned war it can cut off funding for that war without violating any treaty.”
I agree with the first sentence. So what I am saying is that the President is following the law by exercising the “mechanism by which war can be made on a legal basis under international law”. And no it does not oblige. He is also complying with the 1973 WPR because it says in section 1547 d(i)that it will not impede or hinder or alter existing treaties.
And yes, Congress can cut off funding. Congress can cut funding for payment of our UN dues. Congress can rescind treaties including our UN Charter. This is exactly one of the ways in which checks and balances can be played out.
Now your hypothetical scenario regarding a mutual defense pact with Israel is interesting. But it is also not relevant. Our treaty with the UN is different because it is voluntary or opt-in when it comes to use of force. It also contains the veto power of being a permanent member of the Security Council. This is one of the ways in which we can stop a UNSC resolution for use of force and one of the mechanisms that makes our use of force voluntary — NOT OBLIGATED.
The US Israel hypothetical is different because you are setting it up with an obligation to defend Israel in the treaty. In this sense it is more like the first iteration of the North Atlantic Treaty Organization of 1949. If Congress were to deny funding, then Congress would be breaking the treaty and in violation of Article VI of the Constitution.
“If Congress decided that they didn’t want to honor that treaty, the president would still be in compliance with the law if he didn’t ask for permission to continue the fight past 60-90 days.”
“If Congress decided that they didn’t want to honor that treaty” they would have to rescind it. If they chose not to rescind the treaty, “the President would still be in compliance with the law if he didn’t ask for permission to continue the fight past 60-90 days.”
Back in March the President said this “obtaining Congressional approval for these attacks was unnecessary because they had already been cleared by the United Nations”. He is exercising the 1973 WPR section 1547 d(1) clause which gives supremacy to existing treaties, in this case the UN Charter.
Now that Kucinich (who seems also to be motivated by fundraising concerns and not just Constitutional concerns) and a lot of others have joined with the Republicans we will see whether the President wants to push on this issue given all the other political capital expenses he has right now especially the debt ceiling.
the reason I am focused on obligation is because it is the key to understanding why an exception was made for the War Powers Resolution.
If there is a situation where the president would be violating a treaty if he did not use military force (and therefore, also, violating the Constitution) then the WPR cannot apply.
However, failure to use military force in Libya would not violate any treaty.
Logic doesn’t get much clearer or simpler than this.
I don’t know why you are so focused on obligation. Yes, it was worry about how our allies might react to the 1973 WPR in light of our OBLIGATIONS under the North Atlantic Treaty Organization. It was also because the Constitution so clearly states that treaties are to be considered supreme law of the land.
In addition to concern about NATO obligations, there was also a concern about defanging the UN. Remember that the UN was given the power to use coercive means–economic sanctions, military force, etc to try to uphold human rights and to prevent wars. The US Congress did not want to turn the UN back into the League of Nations.
And, as you know treaties have obligations as well as rights. Rights is the more accurate way to describe the UN Charter even when discussing coercive means both military and economic.
“If there is a situation where the president would be violating a treaty if he did not use military force (and therefore, also, violating the Constitution) then the WPR cannot apply.” Yes!!!! Exactly!!!
And, if there is a case where a treaty gives the President the RIGHT or allows the President to use military force then the WPR also does not apply because the President’s action is made legal by the existing treaty which has the force of law SUPERCEDES the WPR.
“However, failure to use military force in Libya would not violate any treaty” Yes!!! Exactly!!! That a treaty ALLOWS the President to take an action makes the action no less legal than one which the President is OBLIGATED to take. One kind of action is allowed by a treaty. One kind of action is obligated by a treaty. Both kinds of actions are legal.
The President, in concert with the UNSC, CHOSE to exercise their RIGHTS as defined by the UN Charter and in accordance with international law and with US Law because treaties are the supreme law of the land. This is exactly what the UNSC is set up to do and what the 1973 WPR does not impede.
It was a judgment call on the part of the President, one with which you clearly disagree, but it is not illegal and requires no authorization from Congress.
That’s some strange jujitsu you’re doing.
You are arguing, explicitly, that Congress gave up its sovereignty as well as its power when it signed the treaty to join the UN.
When the UNSC authorizes an action it can create an obligation. For example, it can place sanctions on a country which obligate us not to trade certain items with them. In signing the UN treaty, Congress gave up its sovereignty in such cases.
But when the UNSC gives the United States the ‘right’ to do something, it does not thereby compel the Congress or the president to do anything. The UN cannot give the president the ‘right’ to ignore a law made by Congress if following that law would not violate any treaty or the Constitution.
Let’s look at this another way.
The president can send the air force to patrol the skies over Libya and blow shit up on the ground because he has UNSC authorization to do so and because he has the power to do so unilaterally and without the consent of Congress for sixty days.
At the end of those sixty days, Congress has the right to demand that the president seek authorization for continued involvement and they have the right to cut off funds to force and end to operations because doing so would not violate any treaty or the Constitution.
Just as Congress can interfere legally with UN-sanctioned operations, the president cannot ignore laws by relying on his duty to carry out UN-sanctioned operations. You say he isn’t relying on his duty but his ‘right’ to carry out those operations. But you are also arguing that any meddling by Congress would interfere with a treaty and therefore would violate the Constitution.
This is simply wrong. You have to show some kind of treaty violation, some interference in our carrying out of duties or obligations, not mere commitments.
Again, the administration would advance your argument if they thought it was plausible. They don’t.
“You are arguing, explicitly, that Congress gave up its sovereignty as well as its power when it signed the treaty to join the UN.”
I am arguing no such thing. One of the functions of a sovereign is the ability to enter into treaties. Our Constitution provides for this by instituting a ratification process. Congress freely ratified the UN Charter. The Congress is free to rescind it at any time.
“When the UNSC authorizes an action it can create an obligation. For example, it can place sanctions on a country which obligate us not to trade certain items with them. In signing the UN treaty, Congress gave up its sovereignty in such cases.”
First, Congress didn’t sign the UN treaty. It ratified it. Secondly, Congress is not a sovereign. The United States is a sovereign. Congress is one of three co-equal branches of the United States government. Thirdly, the United States is a member of the UN Security Council with veto power. We cannot be obliged to take an action unless we support it. If we did not have veto power, I doubt Congress would have ratified the UN Charter. The US was a founding member and created authority for itself within the UN Charter to prevent the kind of loss of sovereignty you worry unnecessarily about. Because Congress approved of the obligations and rights contained in the UN Charter it ratified it and made it the law of the land.
“But when the UNSC gives the United States the ‘right’ to do something, it does not thereby compel the Congress or the president to do anything.”
Nothing I am saying contradicts this. The UN is not sanctioning any law-breaking. And by the way, the UN is us too. We are decision makers in the UN. And again, we chose to take action.
“The UN cannot give the president the ‘right’ to ignore a law made by Congress if following that law would not violate any treaty or the Constitution.”
I don’t see your point here. No, the UN cannot give the President the right to ignore a law made by Congress. And if following that law would not violate any treaty or the Constitution then it is legal. Treaties are considered laws and well the Constitution is the law!
“The president can send the air force to patrol the skies over Libya and blow shit up on the ground because he has UNSC authorization to do so and because he has the power to do so unilaterally and without the consent of Congress for sixty days.”
I agree with you until the “for sixty days” part. Congress consented when they ratified the UN Charter. They debated an amendment about the use of force and whether or not the President would have to seek authorization and they defeated this amendment 65-9. Unless Congress revisits the treaty they ratified, there is no need for the President to seek approval at sixty days. Also, when Congress passed the 1973 WPR they specifically decided that it would not interfere with existing treaties. They could have said that they would only honor existing treaties for 60 days but they didn’t.
“At the end of those sixty days, Congress has the right to demand that the president seek authorization for continued involvement and they have the right to cut off funds to force and end to operations because doing so would not violate any treaty or the Constitution.”
Nope, if Congress wants to end the operations in Libya it would need to rescind the UN Charter or change the 1973 WPR. If Congress just changed the 1973 WPR but did not rescind the UN Charter, then it would likely be challenged in court.
Congress tried to challenge President Clinton’s action in Bosnia with this same 60 day argument in the Federal District Court of DC. It failed. They appealed to the US Court of Appeals who affirmed the decision of the District Court. The Supreme Court refused to hear the case.
“Just as Congress can interfere legally with UN-sanctioned operations, the president cannot ignore laws by relying on his duty to carry out UN-sanctioned operations. You say he isn’t relying on his duty but his ‘right’ to carry out those operations. But you are also arguing that any meddling by Congress would interfere with a treaty and therefore would violate the Constitution.”
A UN sanctioned operation is allowable under existing US law because treaties are considered the supreme law of the land. Actions that are allowable under the law are legal. On what grounds would Congress interfere with an action that is allowable under the law? Congress’ remedy would be to change the law. They haven’t done this yet. I am arguing that if Congress wants to “meddle” then they should change the law or rescind the treaty. Otherwise, they are not on solid legal grounds. Here is the 1973 WPR 1547 (b) on the subject.
“Nothing in this chapter shall be construed to require any further specific statutory authorization to permit members of United States Armed Forces to participate jointly with members of the armed forces of one or more foreign countries in the headquarters operations of high-level military commands which were established prior to November 7, 1973, and pursuant to the United Nations Charter or any treaty ratified by the United States prior to such date.”
I don’t think the President is ignoring any law by carrying out a UN sanctioned operation when the UN Charter that allows this operation is given the full force of law by our Constitution.
Congress cannot break a treaty that it has ratified. They can rescind the treaty. This is the legal process established by our Constitution.
This thread is getting hard to read. My response will be at the top of the thread.
The administration as recently as yesterday called the House resolution “unhelpful and unnecessary”.
I just realized that you misunderstood my statement about treaty obligation. Ratification of the UN Charter is a treaty obligation. The UN Charter is extensive and includes much more than UNSC rules about military action. I did not say that we have an obligation to take military action in all UNSC resolutions authorizing use of force.
I am not at all versed in the Constitutions of Ghana and Indonesia. Obviously they should comply with the laws of their lands. I don’t see how this is relevant to whether or not our President is complying with the US Constitution.
I’m sorry but I can’t take anybody seriously who’d try to pass off Yemen policy as some sort of success. That’s just ridiculous.
Do you have any idea what’s going on in Yemen right now? This is your idea of subtle and clever statecraft?
What were the reasonable alternatives in Yemen? (1) Use the fact that the US and Yemen had developed a relationship in the so-called war on terror to exert persuasion on Saleh not to try to repress the protesters. (2) Threaten to cut of whatever aid we are providing Yemen. (3) Push for mediation from outside, possibly from folks Saleh would listen to. (4) Seek UN action. (5) Intervene unilaterally.
It is clear from Saleh’s actions that (1) and (2) postponed violence for about a month. The Gulf Cooperation Council effort to get Saleh to peacefully step down (3) went nowhere. Saleh made the mistake of attacking his primary political rival in his own tribe. They responded. Things are likely to resolve themselves in a few weeks one way or the other — or it will be clear that there is real and not bought support for Saleh in which case we have a mess that was postponed rather than created by US action. I see that as a plus in grading Obama’s handling of a very complicated and dangerous situation.
Yemen is tricky but there is only moderate possibility of conflict there destabilizing a larger area. The Gulf Cooperation Council is already on this case.
Syria, however, is a very dicey situation. Syria borders Lebanon, Iraq, the Palestinian Authority, Israel, Jordan, Iraq, and Turkey. Serious intragroup conflict in Syria (as opposed to unified conflict against the regime) can create a big mess in the region, provide an excuse not to leave Iraq, and endanger a NATO ally with a restive minority population. Our relationships with all of those frontline states but Lebanon are going to be critical to a unified strategy for reducing the potential for wider conflict.
Situations like the Arab Awakening are not matters of subtle statecraft but wise response. If you look at the region right now, there are some serious changes going on. Morocco seems to be moving toward real constitutional monarchy. Algeria has backed away from the brink. It is clear that Gaddafi does not command the support of the people; absence a stupid move like putting ground troops in the country, the advantage is with the Transitional National Council and the implementing alliance. Egypt is slowly and sometimes haltingly moving in a helpful direction. The Bahraini government has backed away from the brink in time to get the Formula One race rescheduled. Yemen is reaching endgame or absolute chaos, but that will be the decision of Yemenis. Oman has made reforms. Saudi Arabia for the moment is quiet as are the Gulf sheikdoms. And Jordan’s King Abdullah is moving rapidly to reform his government and involved opposition leaders in the reforms. Whether Jordan is also headed for a constitutional monarchy remains to be seen. Lebanon is skittish because of Syria. Iraq has problems but not enough to require US troops to stay.
We are looking at a multiyear transformation here, and events are moving much more rapidly than they did during the collapse of the Soviet Eastern Empire, the breakup of the Soviet Union into its constituent republics, and the breakup of Yugoslavia.
America’s Yemeni policy since the beginning of the “youth revolution” is something of a success. What complicates it is America’s policy toward Yemen over that past three and a half decades.
It is not the Kissinger or Metternich type of “subtle” and “clever”. More like Truman or Eisenhower. Craftsmanslike.
I agree completely with your analysis.
Booman,
How can you keep writing that the WPA overrides the UN Authorization Act, and then write that the two are not in opposition? Those are two contradictory statements.
For a new law to override an older law, it must contradict something in the old law, and you keep saying that the WPA does not do so.
In response to MomSense:
You are misreading the statute:
First you quote this…
…without noting the bolded part. This language only applies to actions taken prior to November 7, 1973.
This becomes more clear when you read what you left out.
That’s all explicitly rejecting your argument.