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PVnRT Donating Member (1000+ posts) Send PM | Profile | Ignore Tue Mar-22-11 10:50 AM
Original message
The President does not need Congressional approval to act on a UNSC resolution
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."

(A thank you to SanchoPanza for referencing the U.N. Participation Act)
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Hosnon Donating Member (1000+ posts) Send PM | Profile | Ignore Tue Mar-22-11 10:52 AM
Response to Original message
1. Do you have a link to the "such special agreement"? nt.
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PVnRT Donating Member (1000+ posts) Send PM | Profile | Ignore Tue Mar-22-11 10:56 AM
Response to Reply #1
2. "pursuant to"
That means that compliance with the resolution is pursuant to any prior agreement - i.e., if we had signed a non-aggression pact with Libya, or something along those lines. It does not require a "special agreement" to commit forces in support of the resolution.
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Hosnon Donating Member (1000+ posts) Send PM | Profile | Ignore Tue Mar-22-11 10:58 AM
Response to Reply #2
3. Under that section, there must be an agreement pursuant to Article 43 of the U.N. Charter, which
Edited on Tue Mar-22-11 10:58 AM by Hosnon
then must be approved by Congress.

Do you have a link for the special agreement and the subsequent authorization?
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ProSense Donating Member (1000+ posts) Send PM | Profile | Ignore Tue Mar-22-11 11:13 AM
Response to Reply #3
7. No
The agreement is the U.N. Resolution that was approved. Congress already ratified the U.N. Charter.

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Hosnon Donating Member (1000+ posts) Send PM | Profile | Ignore Tue Mar-22-11 11:44 AM
Response to Reply #7
16. I'm not sure that's accurate.
Edited on Tue Mar-22-11 11:45 AM by Hosnon
The full text of Section 6:

"The President is authorized to negotiate a special agreement or agreements with the Security Council which shall be subject to the approval of the Congress by appropriate Act or joint resolution providing for the numbers and types of armed forces, their degree of readiness and general location, and the nature of facilities and assistance, including rights of passage, to be made available to the Security Council on its call for the purpose of maintaining international peace and security in accordance with article 43 of said Charter.

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."


The "special agreement" is not the U.N. Charter itself; that would be circular because the "special agreement" must be "in accordance with article 43" of the U.N. Charter. If the "special agreement" is the U.N. Charter, the language of Section 6 is meaningless.

I read the section as authorizing the President to negotiate an agreement with the Security Council regarding our obligations pursuant to Article 43 of the U.N. Charter. Once that agreement is negotiated, it must then be approved by Congress. If approved, no further authorization from Congress is needed to perform under that agreement.

So - what is the agreement, and has Congress approved it?
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ProSense Donating Member (1000+ posts) Send PM | Profile | Ignore Tue Mar-22-11 11:58 AM
Response to Reply #16
17. No, it's correct
"The President is authorized to negotiate a special agreement or agreements with the Security Council which shall be subject to the approval of the Congress by appropriate Act or joint resolution providing for the numbers and types of armed forces, their degree of readiness and general location, and the nature of facilities and assistance, including rights of passage, to be made available to the Security Council on its call for the purpose of maintaining international peace and security in accordance with article 43 of said Charter.

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."


You can see United Nations Security Council Resolution 84 for a precedent.



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Hosnon Donating Member (1000+ posts) Send PM | Profile | Ignore Tue Mar-22-11 12:00 PM
Response to Reply #17
18. Ok, let's assume for the sake of argument that the Security Council Resolution
Edited on Tue Mar-22-11 12:01 PM by Hosnon
satisfies the "special agreement" prong.

Congress has not yet approved the "special agreement", which is a requirement under Section 6.

Note: I don't think any Article 43 standing U.N. military force exists (i.e., I don't think it has ever been used).
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ProSense Donating Member (1000+ posts) Send PM | Profile | Ignore Tue Mar-22-11 12:01 PM
Response to Reply #18
19. What
authorization did Truman use?

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Hosnon Donating Member (1000+ posts) Send PM | Profile | Ignore Tue Mar-22-11 12:03 PM
Response to Reply #19
21. No clue, and probably none pursuant to Section 6 (because I don't think an Article 43
military force even exists).
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RaleighNCDUer Donating Member (1000+ posts) Send PM | Profile | Ignore Tue Mar-22-11 06:07 PM
Response to Reply #17
38. What is the source of that quote you've been cut n pasting for two days
and WTF does "authorization to tile president by congress" mean?
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SanchoPanza Donating Member (410 posts) Send PM | Profile | Ignore Wed Mar-23-11 07:49 AM
Response to Reply #16
39. That makes no sense.
I think you're misreading the charter and the Participation Act. You do not need an Article 43 agreement to take an Article 42 action. Why would you need Congressional authorization for an Article 43 agreement but not an Article 42 action if the two reference the same process? Hell, why would you even need Article 42 in the first place?

They don't relate to the same thing. Article 43 references permanent contributions to a U.N. security force, something along the lines of a standing army of the Security Council. Article 42 references limited peacekeeping actions (should non-military interventions in Article 41 fail or prove insufficient). The Security Council has never invoked Article 43, yet has been using the more limited Article 42 in every multilateral intervention since Korea. This is, generally speaking, a good thing. Article 42 actions are narrow in scope and have specific goals, so there is less of a chance of "mission creep" or a military operation going beyond the scope of the resolution. People nervous about Libya becoming a quagmire should take comfort in this.

The reason why there is a distinction made in the Participation Act between Articles 42 and 43 is because, when it was ratified in 1947, Congress had no idea that the U.N. would come to rely exclusively on the more limited Article 42 actions. So they made it impossible for the President to submit troops to a permanent force without their approval. But in the tradition going all the way back to Jefferson's war against Tripoli, they left ad hoc engagements largely up to the executive under the rationalization that Congress could always curtail them after the fact. The War Powers Resolution of 1973 merely codified this unwritten rule into law and set specific time tables for such engagements (60 days plus an additional 30 for redeployment) as well as establishing reporting requirements that the President must fulfill.
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Hosnon Donating Member (1000+ posts) Send PM | Profile | Ignore Wed Mar-23-11 09:43 AM
Response to Reply #39
40. Thanks for the thoughtful reply.
Edited on Wed Mar-23-11 09:45 AM by Hosnon
Both provisions of Section 6 use the phrase "special agreement or agreements" (albeit slightly differently, which I think supports my interpretation). The first provision provides that the President is "authorized to negotiate a special agreement or agreements with the Security Council which shall be subject to the approval of the Congress by appropriate Act or joint resolution". The second provision provides that the 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. (I think we are in agreement that the phrase references the same concept.)

Under either Article 42 or 43, an agreement - approved by Congress - is necessary before any military force can be used. With regard to Libya, what is that agreement?

ETA: What about my post didn't make sense? I did not reference Article 42.
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SanchoPanza Donating Member (410 posts) Send PM | Profile | Ignore Wed Mar-23-11 02:03 PM
Response to Reply #40
41. I still think you're misreading it.
First, let's look at the full Articles of the UN Charter. I'll include Article 41, because it provides context for Article 42.

Article 41
The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.

Article 42
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.

Article 43
All Members of the United Nations, in order to contribute to the maintenance of international peace and security, undertake to make available to the Security Council, on its call and in accordance with a special agreement or agreements, armed forces, assistance, and facilities, including rights of passage, necessary for the purpose of maintaining international peace and security.

Such agreement or agreements shall govern the numbers and types of forces, their degree of readiness and general location, and the nature of the facilities and assistance to be provided.

The agreement or agreements shall be negotiated as soon as possible on the initiative of the Security Council. They shall be concluded between the Security Council and Members or between the Security Council and groups of Members and shall be subject to ratification by the signatory states in accordance with their respective constitutional processes.


Taken together, we have the following framework for Security Council actions: 1) The Security Council may pass resolutions calling for non-military interventions in sovereign states for the purpose of peacekeeping. 2) Should those non-military interventions fail, the Security Council has the ability to authorize military intervention by its member states. 3) The Security Council may make special agreements with member states to provide it (meaning the Security Council) with military forces and other assistance should the need arise, and such agreements will be made in accordance with the constitutional processes of member states.

What you're saying is that a "special agreement" under Article 43, which is what the U.N. Participation Act is referencing when it uses the words "special agreement," is necessary for an Article 42 action. I think what you're missing is that Article 42 actions are not taken by the Security Council itself, but that these actions are taken by member states, acting in concert, with authorization of the Security Council. The UN Participation Act says, in laymans terms, that if the President is committing U.S. forces to a military action under Article 42, then Congressional authorization is not needed unless such actions are undertaken using forces granted to the Security Council under Article 43.

And your post didn't make sense because no special agreement under Article 43 has ever been made, at least not with the United States, and that every single U.S. commitment to a military action authorized by the Security Council has been done explicitly and exclusively under article 42. Including Korea. In other words, if you're right, then not only has nearly every President since Truman violated the War Powers Clause, but Congress and the Judiciary has done absolutely nothing about it for over sixty years. Personally, I find that to be a bit of a stretch.
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Hosnon Donating Member (1000+ posts) Send PM | Profile | Ignore Thu Mar-24-11 10:28 AM
Response to Reply #41
46. Let me clarify something regarding my position here:
Edited on Thu Mar-24-11 10:44 AM by Hosnon
I'm leaning towards the position that this military action is constitutional. However, that opinion is based on the broad military powers given the President by the Constitution. The President's authority to engage in military conflict is limited only by his inability to declare war. The minutes of the Constitutional Convention make it clear that the Founders replaced "make war" with "declare war" so as to give the President broad authority. And that is with regard to "war" - not every military action is a "war", and the President likely has unlimited authority to engage in non-war military actions. Therefore, I do not believe that "every President since Truman violated the War Powers Clause", regardless of compliance with any statute or treaty. (As a side note, the Supreme Court's inaction is deliberate; the Court has willingly bowed out of resolving this kind of issue pursuant to its Political Question Doctrine.)

As for the U.N. Charter, the U.N. Participation Act, and the War Powers Act: none of them can amend the Constitution, including the scope of the President's military power. Absent an amendment to the Constitution, the President's military power remains undiminished.

The large caveat here is that Congress always has the authority to (1) defund the military action and (2) impeach the President. That is why, to me, discussing compliance with any and all treaties and statutes is important. The more consensus the President can achieve, the less likely Congress is to exercise its options to stop him.

He's clearly complied with the U.N. Charter as this military action is pursuant to a resolution from the Security Council. As for the War Powers Act, he's sent the necessary notice (including the "I think I don't have to do this" language). Congress will likely acquiesce, if perhaps only by silence; however, it will affirmatively condone the action if it does to take any steps to defund the military action. And if Congress does not authorize the military action but the President continues doing what he is doing, Congress' only recourse is one or both of the two options listed above, because the Supreme Court will not resolve the issue. The Supreme Court is not the only arbiter of constitutionality, especially when it has declined to assume that role. Any issues of constitutionality will be resolved by other means, e.g., impeachment.

Lastly, I'm not convinced that my interpretation of the "special agreement" language is spot on, and I'm not sure yours is either. They both seem to be reasonable interpretations of the text. The only authority I came across was a report prepared for Congress by Richard F. Grimmett, a Specialist in International Security with the Congressional Research Service at the Library of Congress. According to his report:

For armed actions under Articles 42 and 43 of the United Nations Charter, Section 6 of the U.N. Participation Act authorizes the President to negotiate special agreements with the Security Council which shall be subject to the approval of the Congress by appropriate Act or joint resolution, providing for the numbers and types of armed forces and facilities to be made available to the Security Council. Once the agreements have been concluded, further congressional authorization is not necessary, but no such agreements have been concluded.

I haven't read the entire report but his interpretation here agrees with mine. But again, simply because the U.N. Participation Act has not been complied with does not mean, in my opinion, that this military action is unconstitutional. The constitutionality of this is wholly independent of these treaties and statutes. Compliance with them only serves to aid the President politically, which in turn will decrease the chances the military action will be defunded and he will be impeached.

In sum (for clarity's sake), this military action is probably constitutional pursuant to the President's military powers bestowed upon the office by the Constitution. However, Congress holds the purse strings and can impeach the President. Therefore, it is wise to build as large a consensus as possible by complying with treaties and statutes on the subject. But whether he has complied is not ultimately an issue of constitutionality (unless of course, it leads to his impeachment and removal, in which case it is fair to say that his actions were unconstitutional).
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Vattel Donating Member (1000+ posts) Send PM | Profile | Ignore Thu Mar-24-11 01:41 PM
Response to Reply #46
49. Given that you are clearly intelligent and good with arguments,
as demonstrated in your posts, I'm sure that I could convince you to change your mind about this:

"I'm leaning towards the position that this military action is constitutional. However, that opinion is based on the broad military powers given the President by the Constitution. The President's authority to engage in military conflict is limited only by his inability to declare war. The minutes of the Constitutional Convention make it clear that the Founders replaced "make war" with "declare war" so as to give the President broad authority."

I can't do it in a simple post, though. My advice: keep studying the issue.
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Hosnon Donating Member (1000+ posts) Send PM | Profile | Ignore Thu Mar-24-11 02:40 PM
Response to Reply #49
51. Thanks.
Edited on Thu Mar-24-11 02:41 PM by Hosnon
I think we are in agreement on just about all of this (except, perhaps, whether this action was constitutional).

The primary reason I have a hard time pinning myself down regarding the extent of Executive authority is precisely because I have studied this issue. We can start with the Vesting Clauses of Articles I and II:

Article I, Section 1: All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

Article II, Section 1: The executive Power shall be vested in a President of the United States of America.

Note the difference: The Vesting Clause regarding Congress limits its power as a legislative body to only the powers granted in the Constitution. However, the Vesting Clause regarding the President vests him with all executive power with no similar limitations. This might be a minor textual difference but a canon of constitutional interpretation is that when drafters use different words or phrases, they mean for there to be a difference. The analogue that scholars will use then when trying to determine the scope of executive power is the British monarch at the time of the Founding. In other words, the Founders vested the President with all executive power held by the king, the only limitations being those in the Constitution itself (e.g., The War Clause). (Although the idea of the "executive essence" floating across the Atlantic from King George III to George Washington has been ridiculed on more than one occasion.)

Then we have the minutes of the Constitutional Convention. Madison objected to the War Clause using the phrase "make war". He thought the President's military power should not be so limited, so he proposed changing the phrase to "declare war". This, to me, is the strongest evidence that the Founder's intended an Executive with robust military power. Because of Madison's change, the President has the authority to take any military action that either (1) is less than "war"; or (2) is "making" war, as opposed to "declaring" war.

When I take these two elements together, it seems to me that the Founders intended a Executive with military power so broad that Congress' War Clause is simply a slight negation. The President can do anything except "declare war".

Ultimately, however, I suppose this conflicts with what I personally think should be the extent of the President's military power (or perhaps I question whether the Founders got this one right, as they couldn't foresee what the world would be like today). Also, Congress was unquestionably intended to be the First among Equals, so I tend to think that it should have more control over our military actions than it appears to have today. Then again, Congress always has the authority to cut funding or impeach - its failure to do so over the last 200 years has de facto cemented the current balance of power.

As the Supreme Court will never wade into this mess, I guess I default to the position that any military action the President does is constitutional unless Congress flexes its muscle and defunds or impeaches. Without the judiciary to check the power of the President, all that's left is Congress (and by extension, us).
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Vattel Donating Member (1000+ posts) Send PM | Profile | Ignore Thu Mar-24-11 09:58 PM
Response to Reply #51
53. A few points:
(1) Madison himself clearly beleived that only Congress has the power to make (i.e., create war). Madison wrote: In no part of the constitution is more wisdom to be found, than in the clause which confides the question of war or peace to the legislature, and not to the executive department. Madison also wrote: The president shall be commander in chief of the army and navy of the United States, and of the militia when called into the actual service of the United States. There can be no relation worth examining between this power and the general power of making treaties. And instead of being analogous to the power of declaring war, it affords a striking illustration of the incompatibility of the two powers in the same hands. Those who are to conduct a war cannot in the nature of things, be proper or safe judges, whether a war ought to be commenced, continued, or concluded. And in a message to Congress urging war against Great Britain (June 14, 1812), President Madison wrote: Whether the United States shall continue passive under these progressive usurpations and these accumulating wrongs, or, opposing force to force in defense of their national rights, shall commit a just cause into the hands of the Almighty Disposer of Events, avoiding all connections which might entangle it in the contest or views of other powers, and preserving a constant readiness to concur in an honorable reestablishment of peace and friendship, is a solemn question which the Constitution wisely confides to the legislative department of the Government.

(2) you cite the minutes of the Constitutional convention, but Madison describes his own suggestion as (here I am paraphrasing because I don't have the text in front of me) granting the Congress the power to declare war and leaving to the executive the power to repel an immediate attack.

(3) Interestingly, Madison argued that the power to make war was legislative in nature rather than executive and so, on his view anyway, the vesting clause could not possibly grant this power to the President. Other founders (e.g., Hamilton) disagreed with this, but it was agreed by all that executive powers explicitly granted to Congress were not part of the grant of executive power to the President. The Founders believed that the only way to legally create war was by declaring it (creating war without declaring it was regarded a a violation of the natural law of nations); so to grant Congress the exclusive authority to declare war was, in their minds anyway, to grant it the exclusive authority to create war.

As you know this issue is complicated and I cannot present my full argument against your position here. But I thought I'd send you a few thoughts to ponder.
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PurityOfEssence Donating Member (1000+ posts) Send PM | Profile | Ignore Fri Mar-25-11 12:28 PM
Response to Reply #39
58. They certainly could have worded it better, but it means that Authorization is required
Here's an analysis from the American Journal of International Law, which is part of a very lengthy history of the negotiations that led to the Act. It's a hell of a read, and explains the dynamics in no uncertain terms.

The big killer in this clause is that the President is allowed to act without Congress' authorization if he acts PURSUANT TO SUCH SPECIAL AGREEMENT OR AGREEMENTS, but agreements of that kind are specifically required to need Authorization by Congress. It's only his personal decision if the Congress has already agreed upon the plan. All it means is that he doesn't need to ask them again before making the phone call; he's already gotten their permission because he HAD TO.

I respectfully request your response to this.

� "Constitutional processes" is defined in section 6 of the UN Participation Act of 1945. Without the slightest ambiguity, this statute requires that the agreements "shall be subject to the approval of the Congress by appropriate Act or joint resolution." Statutory language could not be clearer. The President must seek congressional approval in advance. Two qualifications are included 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 the 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.



� The first qualification states that, once the President receives the approval of Congress for a special agreement, he does not need its subsequent approval to provide military assistance under Article 42 (pursuant to which the Security Council determines that peaceful means are inadequate and military action is necessary). Congressional approval is needed for the special agreement, not for the subsequent implementation of that agreement. The second qualification clarifies that nothing in the UN Participation Act is to be construed as congressional approval of other agreements entered into by the President.



� Thus, the qualifications do not eliminate the need for congressional approval. Presidents may commit armed forces to the United Nations only after Congress gives its explicit consent. That point is crucial. The League of Nations Covenant foundered precisely on whether congressional approval was needed before using *30 armed force. The framers of the UN Charter knew that history and consciously included protections of congressional prerogatives.

http://www.law.berkeley.edu/faculty/yooj/courses/forrel...


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Clio the Leo Donating Member (1000+ posts) Send PM | Profile | Ignore Tue Mar-22-11 11:00 AM
Response to Original message
4. and there you go. nt
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PurityOfEssence Donating Member (1000+ posts) Send PM | Profile | Ignore Fri Mar-25-11 03:31 AM
Response to Reply #4
54. Except that this is wrong. He's in violation; here's something from the U.C. Berkeley Law School...
� The first qualification states that, once the President receives the approval of Congress for a special agreement, he does not need its subsequent approval to provide military assistance under Article 42 (pursuant to which the Security Council determines that peaceful means are inadequate and military action is necessary). Congressional approval is needed for the special agreement, not for the subsequent implementation of that agreement. The second qualification clarifies that nothing in the UN Participation Act is to be construed as congressional approval of other agreements entered into by the President.



� Thus, the qualifications do not eliminate the need for congressional approval. Presidents may commit armed forces to the United Nations only after Congress gives its explicit consent. That point is crucial. The League of Nations Covenant foundered precisely on whether congressional approval was needed before using *30 armed force. The framers of the UN Charter knew that history and consciously included protections of congressional prerogatives.

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MNBrewer Donating Member (1000+ posts) Send PM | Profile | Ignore Tue Mar-22-11 11:05 AM
Response to Original message
5. Tile?
"Provided, That nothing herein contained shall be construed as an authorization to tile President by the Congress..."

What is the meaning of the word "tile" in this context?
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starroute Donating Member (1000+ posts) Send PM | Profile | Ignore Tue Mar-22-11 12:02 PM
Response to Reply #5
20. Looks like a scanner error -- should be "to the President"
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dennis4868 Donating Member (1000+ posts) Send PM | Profile | Ignore Tue Mar-22-11 11:07 AM
Response to Original message
6. please get your facts out of here....
you are ruining the anti Obama narrative here for all of us....
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SkyDaddy7 Donating Member (1000+ posts) Send PM | Profile | Ignore Thu Mar-24-11 02:17 PM
Response to Reply #6
50. Made a mistake...However, YES these STUPID FACTS do take...
Edited on Thu Mar-24-11 02:18 PM by SkyDaddy7
the fun out of the Obama bashing that seems to be the regular past time around here!!
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PurityOfEssence Donating Member (1000+ posts) Send PM | Profile | Ignore Fri Mar-25-11 12:10 PM
Response to Reply #6
56. Why? Because they prove you wrong? The UN does not claim this right of control.
The UN Charter specifically states that any agreement between a member nation and the Security Council pertaining to military involvement MUST BE RATIFIED BY THE NATION'S CONSTITUTIONAL PROCESS. The UN does not claim the right to grant a national leader permission to deploy forces UNLESS the country itself has done whatever its Constitution requires to permit the action. It's in UN Charter Article 43 at the very end.

The War Powers Act defines what a "war" is considered to be, and requires either a Congressional Authorization or Declaration of War, unless we're attacked, which we weren't.

The UN Participation Act of 1945 allows the President to make a "special agreement" with the Security Council, but requires it to then be Authorized by Congress. The President may act on his own and deploy forces upon a call to arms via Article 42, but ONLY IF THE AGREEMENT HAS BEEN AUTHORIZED BY CONGRESS. If not, he/she has to get the authorization after the Article 42 call and before deployment.

There's no wiggle room at all. It's specifically stated in the very law that defines our participation in the United Nations, and it's specifically stated in the War Powers Act. The United Nations goes out of its way to further substantiate this specifically.

I would be doing this if Jan Schakowsky or Pete Stark was the President. This can really bite us all in the ass if it isn't dealt with soon.
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littlewolf Donating Member (920 posts) Send PM | Profile | Ignore Tue Mar-22-11 11:14 AM
Response to Original message
8. and yet candidate Obama had this to say in 07
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.

Barack Obama, December, 2007
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ProSense Donating Member (1000+ posts) Send PM | Profile | Ignore Tue Mar-22-11 11:18 AM
Response to Reply #8
9. What does that have
to do with a U.N. authorized action?

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littlewolf Donating Member (920 posts) Send PM | Profile | Ignore Tue Mar-22-11 11:21 AM
Response to Reply #9
10. didn't shrub do the same thing ?
the UN authorized all these sanctions .... bush "only" acted on em ....
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jeff47 Donating Member (1000+ posts) Send PM | Profile | Ignore Tue Mar-22-11 11:26 AM
Response to Reply #10
12. Yes, when the UN authorizes force, that means the president can go ahead and use force
What made the Iraq invasion illegal was not the use of force. It was the lying to get the authorization for the use of force.
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ProSense Donating Member (1000+ posts) Send PM | Profile | Ignore Tue Mar-22-11 12:05 PM
Response to Reply #10
23. The U.N. did
not authorize Bush's invasion of Iraq.

Bush got an AUMF.


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alcibiades_mystery Donating Member (1000+ posts) Send PM | Profile | Ignore Tue Mar-22-11 12:07 PM
Response to Reply #10
25. Bush explicitly sought UN approval for the invasion, and was rebuffed
He received no UN authorization for his illegal military action against Iraq.
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PurityOfEssence Donating Member (1000+ posts) Send PM | Profile | Ignore Tue Mar-22-11 12:19 PM
Response to Reply #25
29. Yes, but he DID get Authorization from Congress
The asshole sought it two weeks before the first national election after 9-11, and swore up and down that it was just a last resort kind of thing which wasn't his intent at all, but he DID square himself with the Constitution.

I'm not at odds with you here, but I would personally request your analysis of the ongoing sparring here, especially the reading of the War Powers Act, Reid v. Covert, the idiotic misuse of Missouri v. Holland and the UN Participation Act.

I think Obama clearly broke the law, and should cover his ass very quickly.
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alcibiades_mystery Donating Member (1000+ posts) Send PM | Profile | Ignore Tue Mar-22-11 12:33 PM
Response to Reply #29
33. Bush got authorization from Congress, to be sure
That's why the "unilaterally" in the quotation refers to the UN mandate for military action, not the domestic mandate.

I don't think Obama broke the law. He presented his rationale to the Congress within the 48 hours called for by the War Powers Act. The executive has the right to act in emergency situations, as this was, with authorization and request from the UN Security Council, with which we have standing treaty obligations.

Rather than lofty legal argumentation, it's easy enough to see the case in concrete terms: if the UN Security Council, with US assistance, could prevent an impending genocide by ordering bombing of an approaching army, in, say, Zimbabwe, but the act had to happen within the next 4 hours, the Security Council would pass the Resolution and request immediate deployment from member states. That's why we have the 48 hour rule in the War Powers Act - in some situations, the executive must act expeditiously. Now, we can argue about whether this particular action in Libya is one of those cases (the alarming movement of Khaddafy's troops toward Benghazi and the rather brutal statements about their intentions there would seem to make that case), but it's silly, to my mind, to say that such action would have to wait until the Congress was assembled, wait for debate to occur, wait for a vote. The test is whether the action is prolonged and planned, or a limited emergency action. That is the very intention of the War Powers Act, which sought to limit the executive from engaging in prolonged warfare under the guise of emergency action (i.e., Vietnam as a result of the Gulf of Tonkin Resolution, and the like).
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Name removed Donating Member (0 posts) Send PM | Profile | Ignore Wed Mar-23-11 09:17 PM
Response to Reply #33
43. Deleted message
Message removed by moderator. Click here to review the message board rules.
 
jeff47 Donating Member (1000+ posts) Send PM | Profile | Ignore Tue Mar-22-11 11:24 AM
Response to Reply #8
11. And yet he didn't unilaterally authorize anything
The UN authorized it.
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14thColony Donating Member (1000+ posts) Send PM | Profile | Ignore Tue Mar-22-11 11:33 AM
Response to Reply #8
15. And future senator John Blutarsky...
asserted that the Germans bombed Pearl Harbor. But saying that didn't make it true either.
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Freddie Stubbs Donating Member (1000+ posts) Send PM | Profile | Ignore Tue Mar-22-11 12:04 PM
Response to Reply #8
22. What part of 'unilaterally' do you not understand?
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alcibiades_mystery Donating Member (1000+ posts) Send PM | Profile | Ignore Tue Mar-22-11 12:05 PM
Response to Reply #8
24. UN authorized actions are multilateral, not unilateral
Try again.
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Hosnon Donating Member (1000+ posts) Send PM | Profile | Ignore Tue Mar-22-11 12:10 PM
Response to Reply #24
26. I read Obama's quote as being in the context of the federal government.
I.e., "unilateral" means without Congress.

I don't read it as applying to international organizations (or other nations).
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alcibiades_mystery Donating Member (1000+ posts) Send PM | Profile | Ignore Tue Mar-22-11 12:21 PM
Response to Reply #26
30. Well, you'd be wrong about that
It was clearly a reference to Bush's action in Iraq: "unilateral" refers to the international character of Bush's action; he had a "war resolution" from Congress, after all. Furthermore, even under your flawed reading, the argument fails, since the administration sent its notice to Congress to act in accordance with the UN Charter within 48 hours, as called for by the War Powers Act. So it's neither "unilateral" from an international perspective (which is the only sense in which the term "unilateral" makes sense), nor "unilateral" in a Constitutional perspective, since the administration acted as specified for emergency situations under the War Powers Act.

Try again.
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Hosnon Donating Member (1000+ posts) Send PM | Profile | Ignore Tue Mar-22-11 12:29 PM
Response to Reply #30
32. I disagree based on the whole quote:
Edited on Tue Mar-22-11 12:32 PM by Hosnon
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.

As for the specific question about bombing suspected nuclear sites, I recently introduced S.J. Res. 23, which states in part that any offensive military action taken by the United States against Iran must be explicitly authorized by Congress. The recent NIE tells us that Iran in 2003 halted its effort to design a nuclear weapon. While this does not mean that Iran is no longer a threat to the United States or its allies, it does give us time to conduct aggressive and principled personal diplomacy aimed at preventing Iran from developing nuclear weapons.

http://www.boston.com/news/politics/2008/specials/Candi... /


Now, whether he acted unilaterally with regard to Congress is a separate question; but I think that was the context in which he used "unilateral".

ETA: And the above is specifically not about Iraq, but about Iran. His response is to this question: In what circumstances, if any, would the president have constitutional authority to bomb Iran without seeking a use-of-force authorization from Congress?
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ProSense Donating Member (1000+ posts) Send PM | Profile | Ignore Tue Mar-22-11 01:03 PM
Response to Reply #32
34. He was making the point
about a U.S. led attack. That is the context of the phrase "unilaterally authorize."

"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."

The President does have the authority to act without consent as long as he consults with Congress, submits a notice in 48 hours and a report within 60 days.

any offensive military action taken by the United States"

That is a unilateral act. It doesn't refer to Congress, but the act of engaging in a unilateral offensive, which would require Congressional approval.



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Hosnon Donating Member (1000+ posts) Send PM | Profile | Ignore Tue Mar-22-11 01:08 PM
Response to Reply #34
35. I guess we'll have to agree to disagree on this point.
It's seems clear to me from the question the quote is in response to, and the substance of the response itself, that Obama meant unilateral as to Congress (i.e., without Congress' consent) and not unilateral as to any other entity on the planet (including other nations and other supranational organizations).
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Vattel Donating Member (1000+ posts) Send PM | Profile | Ignore Thu Mar-24-11 01:30 PM
Response to Reply #35
48. You are obviously correct about this
but the true believers will never agree.
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Luminous Animal Donating Member (1000+ posts) Send PM | Profile | Ignore Tue Mar-22-11 11:27 AM
Response to Original message
13. You've actualy made an own argument against the title of your OP.
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TomClash Donating Member (1000+ posts) Send PM | Profile | Ignore Tue Mar-22-11 11:32 AM
Response to Original message
14. Here is the full text of Section 6
SEC. 6. The President is authorized to negotiate a special agreement or agreements with the Security Council which shall be subject to the approval of the Congress by appropriate Act or joint resolution providing for the numbers and types of armed forces, their degree of readiness and general location, and the nature of facilities and assistance, including rights of passage, to be made available to the Security Council on its call for the purpose of maintaining international peace and security in accordance with article 43 of said Charter. 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.

Where is the special agreement?
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starroute Donating Member (1000+ posts) Send PM | Profile | Ignore Tue Mar-22-11 12:10 PM
Response to Original message
27. Here's some stuff on executive agreements that may be helpful
Edited on Tue Mar-22-11 12:11 PM by starroute
http://www.law.cornell.edu/anncon/html/art2frag22_user....

Executive Agreements on the Sole Constitutional Authority of the President

Many types of executive agreements comprise the ordinary daily grist of the diplomatic mill. Among these are such as apply to minor territorial adjustments, boundary rectifications, the policing of boundaries, the regulation of fishing rights, private pecuniary claims against another government or its nationals, in Storys words, the mere private rights of sovereignty. Crandall lists scores of such agreements entered into with other governments by the authorization of the President. Such agreements were ordinarily directed to particular and comparatively trivial disputes and by the settlement they effect of these cease ipso facto to be operative. . . .

An early instance of executive treatymaking was the agreement by which President Monroe in 1817 brought about a delimitation of armaments on the Great Lakes. The arrangement was effected by an exchange of notes, which nearly a year later were laid before the Senate with a query as to whether it was within the Presidents power, or whether advice and consent of the Senate wwas required. The Senate approved the agreement by the required twothirds vote, and it was forthwith proclaimed by the President without there having been a formal exchange of ratifications. . . .

Notable expansion of presidential power in this field first became manifest in the administration of President McKinley. At the outset of war with Spain, the President proclaimed that the United States would consider itself bound for the duration by the last three principles of the Declaration of Paris, a course which, as Professor Wright observes, would doubtless go far toward establishing these three principles as international law obligatory upon the United States in future wars. Hostilities with Spain were brought to an end in August, 1898, by an armistice the conditions of which largely determined the succeeding treaty of peace, just as did the Armistice of November 11, 1918, determine in great measure the conditions of the final peace with Germany in 1918. It was also President McKinley who in 1900, relying on his own sole authority as CommanderinChief, contributed a land force of 5,000 men and a naval force to cooperate with similar contingents from other Powers to rescue the legations in Peking from the Boxers; a year later, again without consulting either Congress or the Senate, he accepted for the United States the Boxer Indemnity Protocol between China and the intervening Powers. . . .

The executive agreement attained its modern development as an instrument of foreign policy under President Franklin D. Roosevelt, at times threatening to replace the treatymaking power, not formally but in effect, as a determinative element in the field of foreign policy. The Presidents first important utilization of the executive agreement device took the form of an exchange of notes on November 16, 1933, with Maxim M. Litvinov, the USSR Commissar for Foreign Affairs, whereby American recognition was extended to the Soviet Union and certain pledges made by each official.

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Name removed Donating Member (0 posts) Send PM | Profile | Ignore Tue Mar-22-11 12:14 PM
Response to Original message
28. Deleted message
Message removed by moderator. Click here to review the message board rules.
 
ProSense Donating Member (1000+ posts) Send PM | Profile | Ignore Tue Mar-22-11 12:26 PM
Response to Reply #28
31. "This is an illegal act." Actually,
wrong.

President Obama acted under the U.N. Charter and fulfilled the War Powers Act requirements: Consulted with Congress, notified Congress within 48 hours and now has 60 days to submit a report.

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PurityOfEssence Donating Member (1000+ posts) Send PM | Profile | Ignore Wed Mar-23-11 09:34 PM
Response to Reply #31
44. Grotesquely wrong once again; unless attacked, he needs Congressional Authorization or a Declaration
It's really clear. It's right there in unambiguous terms.
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Name removed Donating Member (0 posts) Send PM | Profile | Ignore Tue Mar-22-11 01:43 PM
Response to Reply #28
36. Deleted message
Message removed by moderator. Click here to review the message board rules.
 
GeorgeGist Donating Member (1000+ posts) Send PM | Profile | Ignore Tue Mar-22-11 01:57 PM
Response to Original message
37. Cherry picker ...
SEC. 6. The President is authorized to negotiate a special agreement or agreements with the Security Council which shall be subject to the approval of the Congress by appropriate Act or joint resolution providing for the numbers and types of armed forces, their degree of readiness and general location, and the nature of facilities and assistance, including rights of passage, to be made available to the Security Council on its call for the purpose of maintaining international peace and security in accordance with article 43 of said Charter. 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.

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Phx_Dem Donating Member (1000+ posts) Send PM | Profile | Ignore Wed Mar-23-11 05:29 PM
Response to Original message
42. And you'd think Dennis the Menace would have the brains to do a little
research before going on TV saying "it may be impeachable." Either it is or it isn't, Dennis. Maybe you should do some homework before spouting off and sounding like an idiot.
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ReggieVeggie Donating Member (1000+ posts) Send PM | Profile | Ignore Wed Mar-23-11 10:29 PM
Response to Reply #42
45. Maybe you could point out to me where Dennis went on TV a said that
okthxbai
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MNBrewer Donating Member (1000+ posts) Send PM | Profile | Ignore Thu Mar-24-11 10:37 AM
Response to Original message
47. Is Barack Obama's Libya intervention a flip-flop from what he said in 2007?
"In 2007, Obama was adamant that the president did not have the power to authorize an attack if there was no imminent threat to the U.S. But now he has authorized just such an action. Full Flop."

<http://www.politifact.com/truth-o-meter/statements/2011... />
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vaberella Donating Member (1000+ posts) Send PM | Profile | Ignore Fri Mar-25-11 12:21 PM
Response to Reply #47
57. No, because they are two different things on two different situations.
But people seem to like to read this the way they want too.
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OhioBlue Donating Member (1000+ posts) Send PM | Profile | Ignore Fri Mar-25-11 11:59 PM
Response to Reply #47
59. sooooo.... as a candidate he made a statement
that taken out of context (when he was thinking specifically of Iran) was factually incorrect.

Seems completely opportunistic to make that a standard for everything he does as CIC. Even the article you linked to indicates that his current position is legal, constitutional and has precedence.
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dennis4868 Donating Member (1000+ posts) Send PM | Profile | Ignore Thu Mar-24-11 03:01 PM
Response to Original message
52. Only because we have a black....
president is this even relevant...other presidents have done the same thing and not a peep from anyone about the law and constitution....we never again have a black president....really sad.
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PurityOfEssence Donating Member (1000+ posts) Send PM | Profile | Ignore Fri Mar-25-11 03:43 AM
Response to Original message
55. The part you quote proves you wrong, but if you show ALL of Section 6, it is even clearer
and you'd also see UN Charter Article 43, which drives the point home even better. First, here's UN Charter Article 43, Section 3 regarding agreements between nations and the Security Council:

"...They shall be concluded between the Security Council and Members or between the Security Council and groups of Members and shall be subject to ratification by the signatory states in accordance with their respective constitutional processes." Which means that any agreement regarding the deployment of forces has to be approved by the nations themselves. The UN CANNOT COMPEL THEM, and even when authorized, that STILL means they can't deploy unless the home country lets them.

Here's the FULL article 6 of the U.S. Congress' UN Participation Act of 1945:

SEC. 6. The President is authorized to negotiate a special agreement or agreements with the Security Council which shall be subject to the approval of the Congress by appropriate Act or joint resolution providing for the numbers and types of armed forces, their degree of readiness and general location, and the nature of facilities and assistance, including rights of passage, to be made available to the Security Council on its call for the purpose of maintaining international peace and security in accordance with article 43 of said Charter. 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.


Here's an analysis from U.C. Berkeley Law School:

� The first qualification states that, once the President receives the approval of Congress for a special agreement, he does not need its subsequent approval to provide military assistance under Article 42 (pursuant to which the Security Council determines that peaceful means are inadequate and military action is necessary). Congressional approval is needed for the special agreement, not for the subsequent implementation of that agreement. The second qualification clarifies that nothing in the UN Participation Act is to be construed as congressional approval of other agreements entered into by the President.



� Thus, the qualifications do not eliminate the need for congressional approval. Presidents may commit armed forces to the United Nations only after Congress gives its explicit consent. That point is crucial. The League of Nations Covenant foundered precisely on whether congressional approval was needed before using *30 armed force. The framers of the UN Charter knew that history and consciously included protections of congressional prerogatives.

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