20 May 2011

What About The War Powers Resolution?

Our Founding Fathers sought to create a Republic that did not establish a government with autocratic abilities to make war.  So the authors of the U.S. Constitution created three co-equal branches of government with responsibility for war making shared between the elected Legislative and Executive Branches.  The Constitution authorizes Congress to declare war and fund it but directs the Executive to be Commander-in-Chief.

This Constitutional construct for war marking has been honored but not followed exactly as envisioned.  After Pearl Harbor in December, 1941, President Franklin D. Roosevelt sought a Declaration of War from Congress.

The United States led forces from a league of nations to defend South Korea under the auspices of a United Nations mandate but without a War Declaration from Congress. President Truman contended that treaty obligations from joining the UN combined with already ceded Congressional authority for “Police Action” obviated a Congressional War Declaration.

In the Vietnam conflict, President Johnson did not seek a formal Declaration of War from Congress (although it is speculated that it could have been obtained) for political reasons.  Instead, after two attacks on US Navel forces in 1964, Congress passed the Gulf of Tonkin Resolution (Public Law 88-408) which allowed the President to deploy conventional forces against any communist aggression in Southeast Asia.

But in the wake of bitterness over an unsuccessful war in Vietnam along with a reticence against the Imperial Presidency, Congress passed the War Powers Resolution of 1973 (50 U.S.C. 1541-1548)  over the veto of President Richard Nixon, and it has caused controversy ever since.

The War Powers Resolution  requires the President to report deployments of troops into armed action abroad within 48 hours and to receive Congressional approbation within 60 days or else be forced to withdraw troops in another 30 days.

The seven Presidents who followed have bristled at the encroachment of Congress into the Executive Branch’s powers as Commander in Chief. But until now, all have acted “consistently” with the War Powers Resolution but not acting pursuant to the law. Basically, that gives Presidents a fig leaf which officially preserves the President’s prerogative while essentially complying with the War Powers Act.

While he was campaigning for the Presidency in 2007, then Senator Barack Obama (D-IL) gave a written response to a Boston Globe question about Presidential authority to make a pre-emptive strike against suspected Iranian nuclear sites.  Mr. Obama opined:

The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation. As Commander-in-Chief, the President does have a duty to protect and defend the United States. In instances of self-defense, the President would be within his constitutional authority to act before advising Congress or seeking its consent. History has shown us time and again, however, that military action is most successful when it is authorized and supported by the Legislative branch. It is always preferable to have the informed consent of Congress prior to any military action.
Such palavarous prose is consistent with the constitutional disposition of a Harvard trained legal scholar like Obama.  Around the same time in 2007, then Senator Joe Biden (D-NJ) implied that President George W. Bush was lying about the threat in Iran and promised to impeach him for military action without obtaining Congressional approval.

After being victorious in the 2008 Presidential Election, then President-Elect Obama held a seminar to consider changing the War Powers Act.  Former Secretaries of State Warren Christopher and James Baker recommended repealing the 1973 War Powers Act and replacing it with a new War Powers regimen that required  Congressional consultation BEFORE deploying troops into armed combat that lasts more than a week. Congress would then than 30 days to approve the action and have it signed. If Congress wanted to rescind authority, it would need a 2/3rds vote instead of requiring an affirmative confirmation like the 1973 Act.  But this was all just hot air.  Despite having strong majorities in both chambers of Congress, this was not a priority of President Obama and the 111th Congress.

In March 2011, while President Obama visited Rio de Jainero, the White House released an internet video announcing that American forces were engaged in Libya. President Obama assured Congressional leadership that the American war involvement in Libya would be only a matter of hours if not days.  The letter that the Obama Administration sent to both chambers of Congress relied upon UN Resolution 1973, which permitted the establishment of a no-fly zone in Libya to protect civilians.

Now that the Libyan military excursion has reached the two month mark, what about the War Powers Act?   A letter from Senators Mike Lee (R-UT), Sen. Jim DeMint (R-SC), Sen. John Cornyn (R-TX) and Sen. Rand Paul (R-KY) charges that President Obama committed U.S. Forces without regard to compliance with the War Powers Act.  Obama Administration officials have indicated that they anticipate pursuing the action in Libya indefinitely, so these Senators petitioned the President as to whether he would comply with the law.

Per the War Powers Resolution, if the President does not gain Congressional approval for the military action and if the Commander-In-Chief does not withdraw forces within a month, this could force Congress’ hand.   A Congress which enforces the War Powers Act can either cut off funding for the war or impeach the President for High Crimes and Misdemeanors.

As the impeachment of President William J. Clinton showed, impeachment and removal from office is almost impossible remedy, especially in a divided Congress.  The power of the purse remains but it would be cutting off one’s nose to spite one’s face.  Libyan Leader Gaddafi has a history of backing terrorism and has been flirting with support from the Islamic Revolutionary government of Iran.  So Uncle Sam withdrawing precipitously from the Maghreb would stoke malavalent forces against US.  Moreover, a continuing civil war endangers the International oil market, just as oil prices are decreasing.  This could kill any economic recovery and imperil our European allies.

The Obama Administration has not sent any war authorization bills to Congress.  If President Obama observes the constitutional ethics that he bloviated about as a candidate, there is but one choice: Commander-In-Chief Obama must withdraw American forces in the next 30 days. But it is not advisable to bet on that option.

Unless response to the War Powers Resolution in Libya is mooted by the Rapture, it seems more likely that the Obama Administration will slow walk their response going into Memorial Weekend. Maybe hostilities will be halted for a few minutes so the 60 day clock can be reset. Perhaps they will spuriously claim that it is no longer a U.S. operation as NATO has taken the helm (even though the US essentially is NATO). Better yet, it can be asserted that America’s duty to protection now is sanctioned by treaty obligations to NATO, which follows “police action” authority from Congress, which requires no future Congressional approval.

Granted, as a political observer, I am skeptical about the merits of the War Powers Resolution. Perhaps as skeptical about apply the duty to protect in Libya but not for the slaughters by Assad in Syria. But the War Power Resolution of 1973 is the law of the land.  It is troubling to have a Chief Executive who neither has effective checks on his power nor abides by prior promises to respect the process once in office.

Even though President George W. Bush was reviled as Commander-In-Chief by a war wary opposition to his military conduct, at least the 43rd President bothered to get approval from Congress for the fight against Afghanistan (S.J. Res. 23, Public Law 107-40) and Iraq (H.J. Res. 114) BEFORE engaging in combat.
This sounds less like a Republic with co-equal branches with checks and balances and more like the latter days of Rome, where the legislature was more of a vestige of the res publica. It makes me want to hide in the conceit of the dystopian Terry Gilliam film Brazil (1985).

UPDATE 05/21 Per a letter from President Obama to Congress, the US has only  a limited role with non-kinetic military action in Libya supporting NATO since April 4th. With the US is in a support role, ergo, no War Powers Resolution is required.  I'm sure that Col. Gaddafi would still say that despite the background role that the US is still at war in Libya. 

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