Tuesday, March 22, 2011

Obama Administration announces plans to 'hand off' control of Libyan military action to foreign powers- War Powers Part I

Already under fire in Congress over the much-delayed intervention and nebulous goals of the Libyan military strikes as well as failure of the President to consult with lawmakers under the 'War Powers Act' prior to committing American force to the African conflict, opposition to the Obama Administration's intervention in Libya has only intensified with the announcement from President Obama that he intends to hand off control of the mission to foreign powers, (chronological history and video here).  

Indeed, the move, coming after passage of a U.N. Security Council resolution last Thursday providing for "all necessary measures" to be taken by the methodically-- and some say ploddingly-- crafted coalition to protect the civilian populace has stirred concerns from all ends of the political spectrum, (albeit for different reasons), and left supporters of the President at a loss to explain both the mission and endgame of the intervention.

According to the President, American forces would still be available to support coalition forces in a "supportive role," (see here and here for news of the policy shift, or here for full text of the President's March 25, 2011 speech).  

Unfortunately however, as of this writing, no definition of just what "supportive" means or an explanation of how the safety of American troops would be assured-- or for that matter how and to what ends their role might be utilized or expanded in the future, e.g., in support of "regime change" which the Administration has opaquely indicated was preferable even as the U.N. resolution remains silent on the issue-- was forthcoming from the Administration, (see other commentary on this here).

From the right, concerns have been raised about handing off control over American troops and/or military resources to foreign powers unaccountable to the American people who are undoubtedly on the hook for the majority of the cost of at least the initial missile attack; from the left (and right) that the U.S. will get mired in yet another Mid-east war for nebulous purposes in support of yet another "never-ending" war in favor of an "imperialistic" American foreign policy, (see here). 

And from both ends of the political spectrum concerns are being raised about adherence to the 'War Powers Act' which requires the President to gain Congress' approval for any extended use of military force, see here.   As mentioned above some members of Congress have also raised concerns that the President under the War Powers Resolution Act didn't adequately consult with them prior to launching missile attacks against the African nation, see here, leading at least one
Democratic member of the House, Dennis Kucinich, (D-OH), to raise the question of whether this constitutes an impeachable offense under the Constitution, click here and here.  This in addition to complaints of Democrat Brad Sherman of California who has accused the White House of deliberately underestimating the financial costs of the Libyan operation, see here.  While all such matters are fascinating, they are political matters that for the most part we must leave for discussion another day in order to address the critical legal questions at hand re: the requirements of the War Powers Act itself. 

The War Powers Act, (officially entitled the "War Powers Resolution Act of 1973"), addresses serious Separation of Powers issues between the so-called "political" branches of the U.S. government and has long been the source of constitutional debate and tension between the Legislative and Executive branches. 

Passed in the wake of the Korean and Vietnam wars in which military "conflicts" extended long beyond their intended time without a formal "declaration of war" required by Congress under the Constitution, the War Powers Resolution Act (i.e.'WPRA') requires Congressional "consultation" and approval for any military action the President takes that lasts longer than 60 days. It also requires notice be given to Congress within 48 hours of military force being exercised. The relevant text reads:


SEC. 4. (a) In the absence of a declaration of war, in any case in which United States Armed Forces are introduced--
(1) into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances;
(2) into the territory, airspace or waters of a foreign nation, while equipped for combat, except for deployments which relate solely to supply, replacement, repair, or training of such forces; or
(3) in numbers which substantially enlarge United States Armed Forces equipped for combat already located in a foreign nation; the president shall submit within 48 hours to the Speaker of the House of  Representatives and to the President pro tempore of the Senate a report, in writing, setting forth--
(A) the circumstances necessitating the introduction of United States Armed Forces;
(B) the constitutional and legislative authority under which such introduction took place; and
(C) the estimated scope and duration of the hostilities or involvement.

It is indisputable then that, regardless of the "rightness" or "wrongness" of the President's actions in Libya or whether the Congress would, in fact, have approved of the actions of the President in this case, the President unquestionably has not abided by the requirements of the War Powers Resolution Act here. (Note: While ostensibly (un?)intentional by its textual framers at the U.N., it is important to note that the Security Council resolution, while ironically affixed with the identical "1973" designation, is not the same as the portion of United States Code at issue here.  Of course, the question of whether such a U.N. resolution is binding on the United States or suffices to authorize military action by the President in absence of Congressional approval is certainly germaine to the overall discussion, more on this next time).

Perhaps the most interesting part of the debate between the Legislative and Executive branches over the WPRA is that in spite of increasing reliance upon it by the Legislative branch it has long been considered by the Executive as an unconstitutional intrusion upon the President's right as "Commander in Chief" to direct the military under Article 2, Section 2, par. 1 of the Constitution and to lead in foreign affairs under par. 2 of the same section. 

Indeed, in addition to originally being vetoed by President Nixon-- and with the exception of both President Bush's who sought Congressional approval in dealing with Iraq-- all modern Presidents, (including President Clinton in acting to intervene in Bosnia in 1995), have either skirted or entirely flouted the law's requirements to consult with and report to Congress within 48 hours of hostilities breaking out and receive subsequent legislative approval for the continued involvement of American forces in any conflict worldwide regardless of the circumstances or relevant U.N. resolutions. (Indeed, in defending against a law suit by certain members of Congress to force the withdrawl of American forces from the Kosovo war in 1999 President Clinton expressly claimed that the War Powers Resolution Act was unconstitutional. For an exhaustive review of Presidential compliance with the WPRA in the modern era click here to download a pdf of a report by Richard F. Grimmet of the Congressional Research Service). 

Instead of adhere to the letter of the War Powers Act, Presidents historically have usually opted for giving it lip service while characterizing military interventions as "police actions" to avoid the stringent requirements of the WPRA, (that is, if they didn't outright assert that the requirements of the act were unconstitutional as virtually every President since enactment of this legislation has).

Nevertheless, and in spite of the ongoing confusion and tension between the Legislative and Executive branches on this issue, the constitutionality of the War Powers Resolution Act of 1973 has never been squarely addressed by the Supreme Court in the history of the nation, (although portions of it have been tangentially addressed. See Associate Justice Byron White's passing reference to this issue in Immigration and Naturalization Service v. Chadha, 462 U.S. 919, {1983}).  

In the Chadha case Justice White openly states his opinion that the requirements of Section 5(c) of the WPRA found in the the U.S. code at 50 U.S.C. 1544(c) stating that any U.S. forces commited by the President "shall be removed by the President if the Congress so directs by concurrent resolution"  constitutes an improper 'legislative veto,' see Chahda, supra, at 971, dissenting opinion of White, Associate Justice).

Thus, while we cannot say whether the current circumstance will warrant sufficient occasion for the Supreme Court to finally settle the ongoing tension between the Executive and Legislative branches re: the constitutionality of the War Powers Resolution Act, we believe it to be in the interest of the country that it do so.  In any event, and re: the question of which our title today has to do, it seems beyond debate that it is the President of the United States who must, under out constitution, be in charge of leading our armed forces in times of battle and is who is ultimately responsible for their actions and success (or defeat), a responsibility he cannot merely "delegate" to foreign powers and tribunals.  Indeed, it is this action of the President that we find most troubling and contrary to our Constitution.  Accordingly, and to that end, it may be that the Supreme Court must also weigh in on the related questions re: the 
binding requirements of the War Powers Act on the Executive Branch, and to that extent, we certainly welcome it (as it would resolve these important constitutional questions that have lingered long in our Republic).  

Indeed, in our humble opinion, almost a generation of confusion over the constitutionality and proper application of the War Powers Resolution Act and the according damage ignoring it has caused to our Constitutional Republic is enough. jp  

No comments:

Post a Comment