Tuesday, March 29, 2011

The President's speech and the Libyan intervention under the 1973 War Powers Act- Part Two

As promised last Tuesday-- I do apologize for the delay as I have been attending to other matters, including preparing to take grad entrance exams in a couple months and other issues-- today we are going to delve a little deeper into the whole Libyan matter vis a vis the War Powers Act, (i.e., the "War Powers Resolution Act" passed by the U.S. Congress in 1973).  Initially, and to bring us up to speed on the developments over the last week, we are thrilled to see that any "handing off" of control over American service men and women is apparently going to result in the continuation of their service under the command of an American General in Nato, (for news click here), even if some don't think it will occur at all, (see here). 

 But all such pronouncements arising from the President's speech to the nation last night-- complete with its ironic and almost megalomaniac attempts to take the opportunity to draw some kind of contrast with his presidential predecessors' alleged "delayed" actions vis a vis Bosnia and the Iraq war, see here-- appeared to us to be more about "politics" than anything else and did little to address in detail many lingering questions, including:  1) What are America's national interests in Libya? 2) What is the "exit" strategy and ultimate goal of this "police action," 3) Whether the "War Powers Resolution Act" passed by the United States Congress in 1973 and for which all modern President's have been criticized for not carefully heeding to, can be abrogated, or its requirements fulfilled, by resolutions passed from a world body such as the United Nations Security Council, and 4) if they can be, on what basis are they legal?

Much more than mere academics-  The Rule of Law and America's role in the World

 Such questions as these last two are far more than academic, as they go to the very core of what it means to be an independent Republic of laws and not of men, while the first two, admittedly more "policy based," are inextricably intertwined with the question of whether America will continue to be a strong and independent force for freedom and good in the world.  Indeed, it is the inherent tension between the two that the current Libyan intervention inexplicably raises.  The answers could well determine whether America will in the future be reduced to merely a puppet of other world powers to do their bidding when it suits them if only our President unilaterally consents or whether we will continue to be an independent Republic "governed by laws and not of men" and able to act, unilaterally and pursuant to our law, when it is in our national interests to do so.  

To get to the answers will require a review of relevant history and Constitutional provisions, as well as a brief analysis of international law and relevant treaties governing America's relationship with international organizations such as the U.N. and Nato, (the North Atlantic Treaty Organization).

 And while the more "political" questions of various Presidents' regard, (or lack thereof) for the War Powers Resolution Act itself-- long a criticism of the political left but now also an issue raised by the American Tea Party movement-- will be addressed where relevant, it is not our primary focus of interest here, (as others have aptly weighed in on the legality of President Obama's actions generally, see here), and we have felt content to leave to history and the voters who have and will in due course render judgement as they see fit, (as is the genius of our free Democratic Republic under our Constitution).

As one might imagine, adequately addressing such a topic as I have raised will necessarily take some time. I therefore will devote as many posts as necessary to an adequate examination of this subject, (while allowing for other duties and interjection of other subjects as may arise of more immediate importance), and will note them appropriately for organizational purposes as their respective parts, (of which this is Part Two).

We begin our analysis of this subject with a review of the provisions of the U.S. Constitution, our primary law which has successfully governed our Republic and insured our freedoms for over 230 years, (a record in the history of nation states!). 

The Congress' mandatory role under the United States Constitution and War Powers Act

The U.S. Constitution expressly states that "Congress shall have power to... declare War, grant Letters of Marque and Reprisal," and to "define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations."   United States Constitution, Art. 1, Section 8.

In the same section the Constitution further grants Congress the right to "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States" (the so called "necesssary and proper" or "elastic" clause which those in support of Obamacare like to repeat, another subject for another day, but see previous post on this blog "So what's really the problem with Obamacare?").

As we alluded to in Part One of this topic, Congress intended to utilize this constitutional "necessary and proper" power found in Section 8 by creating the War Powers Resolution Act, (i.e., WPRA). Indeed, this proper ground for its authority is particularly referenced in the text of the WPRA itself:

 SECTION 1, SEC. 2. (b)

"Under article I, section 8, of the Constitution, it is specifically provided that the Congress shall have the power to make all laws necessary and proper for carrying into execution, not only its own powers but also all other powers vested by the Constitution in the Government of the United States, or in any department or officer thereof."

 As an aside, although President Obama stated in his address to the nation that he "consulted" with leaders of the Congress prior to approving military action to enforce U.N. resolution 1973 re: Libya, we note the President is obligated by the U.S. Constitution to do more than just garner international coalitions or "talk" with Congress.  Indeed, the WPRA doesn't refer to "talking" to Congressional leaders at all.  Rather, it clearly indicates the law's requirement that the President's "consulting" duties requires a more direct vote and approval of the Congress.  Again, I quote the relevant portions of the WPRA:


This joint resolution may be cited as the "War Powers Resolution".


"It is the purpose of this joint resolution to fulfill the intent of the framers of the Constitution of the United States and insure that the collective judgement of both the Congress and the President will apply to the introduction of United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicate by the circumstances, and to the continued use of such forces in hostilities or in such situations."

Moreover, such consultations with Congress are to take place before military forced is used, and insure the President continues to "consult" with Congress in accord with the Act's requirements, to wit:

The Requirement for Consultation with Congress under the War Powers Act


"The President in every possible instance shall consult with Congress before introducing United States Armed Forces into hostilities or into situation where imminent involvement in hostilities is clearly indicated by the circumstances, and after every such introduction shall consult regularly with the Congress until United States Armed Forces are no longer engaged in hostilities or have been removed from such situations." - War Powers Resolution Act Section 3.

Further, the WPRA is clear about the circumstances under which force can be utilized. Indeed, under Section 2. (c), the only exception is when American forces are attacked or forced into military action due to the threat of "imminent threat of hostilities" upon American forces:

"The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces."  SECTION 2. (c) WPRA.

Moreover, as pointed out last time, it is the President's duty to-- within 48 hours of use of the armed forces under imminent threat or actual attack-- inform the Congress of the reasons for military action, (clearly not done in this case), to be followed up with written reports to Congress within specific time frames:


"In the absence of a declaration of war, [By Congress], in any case in which United States Armed Forces are introduced--
into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances;
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
the circumstances necessitating the introduction of United States Armed Forces;
the constitutional and legislative authority under which such introduction took place; and
the estimated scope and duration of the hostilities or involvement."

Thus, while it remains to be seen whether the President will comply with the subsequent reporting required, it is inescapably clear that President Obama has clearly flouted the War Powers Act's requirements to initially do so within 48 hours upon one of the triggering events in order to apprise Congress of the reasons and authority for his actions and allow them to fulfill their constitutional role, (leading us to believe that Congressmen Dennis Kucinich's call for Obama's impeachment, while we think a bit over the top, at least has some basis in law, click here).

A question of Separation of Powers, not the 'moral' need for Intervention in Libya

Indeed, this action raises extremely serious constitutional questions regarding Separation of Powers, appropriate constitutional limitations on the two elected (i.e., "political") branches of our federal government, and the Obama Administration's questionable commitment to the Rule of Law. 

Of course, we here at the ACLP have often acknowledged President Obama's soaring rhetorical skills.  Unfortunately, admirable as that may be, it does not in itself change or effect the importance of what we are here discussing, (which is the very Rule of Law by which our whole system of government must continue or eventually fail entirely).  

In that respect, the speech to the nation last night by the President changes none of these matters. 

American interests?  The cost of intervention

Indeed, on that score, this is not about whether or not intervention was necessary in Libya in order to prevent a mass slaughter of civilians, or whether it is in America's interests for Gaddafi to be removed from power.  (As our previous posts make clear, we wholeheartedly agree that the "mad dog of Africa," as President Reagan used to call Gaddafi, needs to go, indeed such is expressly in our national interests.)   He does, after all, have the blood of hundreds of American lives on his hands, (e.g., Pan Am flight 103 terrorist attack as well as Berlin Disco bombing in the 80's and countless other covert terrorist acts around the world).  And this is so regardless of whether or not the rebels are connected to Al Quaeda, a very serious and separate question that must definitively be answered before we allow any other regime to establish itself and/or we decide to directly arm the rebels with American arms.  (Indeed, establishment of just another terrorist regime in Gaddafi's place wouldn't be worth the blood of even one American soldier, not to mention the hundreds of millions of dollars this attack is costing the U.S. taxpayers, see here and here. For reports upon possible Al Quaeda and terrorist connections of the Libyan 'rebels' click here and here).

The Rule of Law

Clearly, the questions at stake which we raise here rather go to the Rule of Law, (and to a lessor extent, the means by which the mission, even assuming it were clearly defined, will be accomplished; incidentally, the United Nations resolution does not authorize "regime change," the very action which would need to take place for any true freedom and protection for the Libyan people to endure as well as to bring the terrorist thug Gaddafi to justice).  Indeed, while the President's speech admits the desireability of removing Gaddafi from power, he openly admits there is no authority for such action from the U.N. mandate, (to say nothing of the War Powers Resolution!) and our limited goals in this regard. (And this on top of his utter failure to outline our exit strategy, the oft critically mentioned "end game" which the President openly admits doesn't exist, nor is there likely to be a clear one established once control of the mission is fully handed off to Nato, for full news on this see here).

Thus, while we here at the ACLP actually agree with the President that some action was desireable and even necessary, we continue to have great reservations about the process, plan and means being used to justify the use of American military forces to do so (even if there were a clear "end game," and even as the President has announced his policy of pursuing a mere "support role" going forward in conflict he has now involved American forces in). 

Non-sensical political correctness?

Indeed, while the President seems to be bending over backwards not to unduly threaten or "offend" other Islamic nations at the prospect of the "great Satan" intervening imperially into their affairs, it apparently hasn't dawned on him that the radical jihadists aren't likely to feel kindly towards us anyways, and that the moderates of the Muslim religion who yearn for freedom and make up the vast bulk of the citizenry want nothing more than for us to intervene, (in fact, if anything they are more likely to be radicalized and recruited for terrorism if we turn a deaf ear to their cries as we did with the Iranian student protestors in June of 2009, see here, here and here, and almost did in Egypt following a seeming pattern, see here).  Such arguments therefore just don't hold up.

As pointed out herein however that does not necessarily mean that we can dispense with the War Powers Resolution or assume military intervention in Libya is lawful.

Moreover, we have serious concerns about the criteria listed by the Administration, (as surely Zimbabwe, Somalia, Sudan, Saudi Arabia, Yemen, Syria, Iran and North Korea are countries fraught with unrest which are ruled by dictators who brutally repress and murder their own people as well as constitute potential (or actual!) hotbeds for terrorism and to varying degrees oppose America and its "freedom agenda" for Democracy around the world).

Don't misunderstand; The ACLP wholeheartedly supports promoting freedom and Democracy around the world wherever we can with decisive action, (one reason we were so unhappy with the Obama Administration's initial lack of decisive action three weeks ago when the "freedom fighter's" were on Tripoli's doorstep instead of now when the human cost and duration of our mission must necessarily be more extensive in order to achieve success).

But in an environment where today's freedom fighters often become tomorrow's terrorists-- and with little seeming ability to forecast the difference between the two-- and especially in this time of limited financial resources and great needs here at home, we simply cannot afford either the human or economic capitol that similar intervention in every country that meets this somewhat amorphous standard would cost.  

A call (and hope!) for clarity in the Libyan mission

In sum, and even as we continue to probe the Constitutionality of this military action, we look forward to receiving more clarity on the mission shortly from the Administration-- or at least news that Gaddafi has stepped down or been summarily deposed in a way that will usher in a free and open society in Libya-- and hope this intervention in Libya succeeds.  (Of course, even if it does, that will not have proven this little exploit was lawful, as we have already shown, it is very arguably not).  

Moreover-- and especially if this action continues with use of the American military for much longer-- the American people, and the men and women who stand ready to lay down their lives for our country every day in potential actions like this all around the world, deserve a lawful justification for the mission in Libya, as well as a better framing of just what are our goals and America's exit strategy for the mission there.

 Indeed, in light of the sacrifices our servicemen and women make every day, they deserve no less. jp  


  1. You bring up an interesting constitutional argument that has been too long overlooked! But in light of your previous posts on this subject isn't it hard to both condemn Obama for neglecting the War Powers Act and at the same time bash him for "dithering" in his decisions on Libya? (even if the constitutionality of the WPA continues to be as clear as muck).

  2. While it is unclear whether your comment is a complement or criticism, it is nonetheless appreciated.

    However, if you are suggesting that it is hypocritical to both criticize Obama's dithering vis a vis Libya while at one and the same time raising questions about the WPRA I would suggest that is not necessarily the case.

    There is no contradiction in holding both that, regardless of whether his actions are a violation of the WPRA, if he was going to violate it Obama should have acted weeks ago when the cost/benefit analysis of risk vs. reward leaned far more favorably in favor of the Libyan people and a prompt defeat of the Libyan regime rather than waiting till even a limited-mission intervention will likely be much more costly in terms of blood and treasure to all coalition partners and the American people.

    Moreover, even had Obama acted sooner, he still could have sought Congressional approval and/or notified Congress of his actions within 48 hours in accordance with the WPRA. In short we don't believe that either is mutually exclusive of the other.

    Indeed, instead of looking at it as an "either or" type of position, we tend to see it as a "yes and" type of position.

    Yes, we wish Obama had acted sooner, and yes, we would like to have seen more respect for the War Powers Act, (or at least its constitutional resolution one way or another).

    Finally, even if our blog posts re: dithering contrasted with that re: the WPRA could be seen as supporting two seemingly contradictory positions in a general "political" sense, regular readers of this blog should know that we are not pigeonholed by our politics into neat categories of political opinion.

    Rather, our purpose is to educate and motivate cultural debate on broad issues of critical import to our national body politic.

    As both of these issues effect our nation in critical ways, we thought it apt to address both. jp

  3. Obama was trying to avoid rushing into a war like we did with IRAQ. He also wanted to wait and see what the entire international community wanted to do.

    Congress' silence in the last 3 presidential commitment of troops shows Congress acquiesced and thus what Obama did was constitutional.
    1) Reagan's invasion of Grenada
    2) Clinton's use of force in Kosovo
    3) G.W. Bush's invasion of Iraq

    Alternatively, Congress' UN SC Resolution was implied Congressional Authority

    SEcondly, under the WPRA, Congress has 60 days to terminate action of president forcing him to bring them home. Congress can also pass a concurrent resolution.

    Thus, the WPRA has only found ONE thing unconstitutional, the denial of Habeus Corpus.

  4. @ huntjump: Undoubtedly, one can think of all kinds of "good intentions" for Obama's delay. (We could probably think of all kinds of reasons for his taking six months to choose a puppy for his children too). Unfortunately, since reading the President's thoughts is a skill we lack, we are forced to deal with the effects of such delay in more practical terms, (as they say, the road to hell is "paved with good intentions.") Whatever his reasons, it certainly wasn't very good for the Libyan people or the prospects for a war over "within days."

    As far as Congress' silence, I may find more agreement with you on this. As I mentioned in today's (April 23rd) third installment on the Topic of the Libyan war, (although I certainly touch upon it in other posts), others far more learned than any of us here at the ACLP have pointed out Congress' failure to put a stop to President Clinton's Kosovo (or Yugoslavian) intervention; in fact, in the case of Kosovo, the Congress expressly approved funding for the Kosovo effort in May of , (see http://www.fas.org/man/crs/IB81050.html). However, this was AFTER President Clinton reported to the Congress on March 26, within 48 hours of the beginning of hostilities and according to the War Powers Resolution, that armed conflict had in fact begun. It was also after the House had failed, by a 213-213 tie, to approve a declaration of war against Yugoslavia and AFTER the Senate passed a "sense of the Senate" resolution on March 23 overwhelmingly approving of the President's actions to involve U.S. forces there. Taken together, it is clear that Clinton at least attempted to abide by the War Powers Act; accordingly, it is a poor comparison to Obama, who failed to even appropriately inform Congress within 48 hours of the beginning of military intervention.

    As for Reagan, if I'm not mistaken, he did inform the congress of the Grenada action within 48 hours, and, unlike Obama who promised American involvement in Libya would be over "in a matter of days," actually was, (though advisors and rebuilders remained for a period of time at the request of the new government).

    As for President Bush, contrary to "rushing" into Iraq he may be the only modern President who has complied with all aspects of the W.P.R.A. Indeed, he requested (and received!) full authorization from Congress for the Iraq action(s) (as did his father also).

    Thanks for commenting. jp

    P.S. Not sure what "habeus corpus" has to do with the topic but again, thanks for commenting. jp