"Obama Is Wrong About Congress and Libya"--James Fallows

[KoKo]

Obama Is Wrong About Congress and Libya
By James Fallows Jun 16 2011, 4:58 PM E

- James Fallows is a national correspondent for The Atlantic and has written for the magazine since the late 1970s. He has reported extensively from outside the United States, and once worked as President Carter's chief speechwriter.

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Let's assume that you could make a courtroom case that Obama has violated neither the Constitution nor the War Powers act in what is now a three-month-old military campaign in a foreign country.

None of those remove the problem, which is not about technicalities. The central concern, and the major threat to our politics, is that once again we are going to war essentially on one person's say-so. Yes, that person is the Commander in Chief; yes, he is committing force for what he considers to be good and prudent reasons; and yes, there are modern circumstances in which a President must be free to act first and consult later.

But after three months of combat, and after several decades of drift toward unilateral Executive Branch action on matters of war and peace, Obama is doing a disservice to the nation, history, and himself by insisting that the decision should be left strictly to him. If the Libyan campaign ultimately "goes well," he will not in any way lessen his own political and historic credit by having involved the Congress. If it goes poorly, he will be politically safer if this is not just his own judgment-call war. More important, in either case he will have helped the country if his conduct restores rather than further weakens the concept that a multi-branch Constitutional republic must share the responsibility to commit force. We can only imagine the eloquence with which a Candidate Obama would be making this exact case were he not in the White House now.

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Obama and his lawyers can persist with their sophistic conceit that they don't "need" to involve the Congress. That may be smart, but it is not wise. Obama the historian and leader must understand that in the broadest political and moral sense he and the country need fuller involvement in decisions on war and peace. Barack Obama has shown flexibility on so many other points, from the structure of his health-care plan to the need for tax cuts. Let's hope he comes to see that this is the wrong place to draw the line.

http://www.theatlantic.com/politics/archive/2011/06/obama-is-wrong-about-congress-and-libya/240590/

[paulk]

1. the kneejerk defence of this by other Democrats

is disturbing, to say the least...

"sophistic" is the right word for sure in describing the Obama administration's defence of it's actions. It's Orwellian newspeak, and we should all be concerned what this will mean for our involvement in future military actions...

[karynnj]

7. It really isn't

There was a hearing in 2009 on the War Powers Act, there are problems with defining exactly what triggers it and when it is needed. There are also problems with constitutionality.

I remember reading some of the Senate discussions when the IWR was being debated. While the Democrats were fighting to force Bush to go to the UN and Congress, there were real questions on what he could and couldn't do without explicit Congressional approval. (In some ways, it might have been better for the Democrats if they had NOT pushed Bush to do this - though without the UN getting teh inspectors in it might not have been as clear that there were no WMDs. But at least it would be clear that Iraq was purely Bush's decision.)

I have heard Democrats say that EVEN IF Obama is correct, it is far better to get the Congressional approval. Unfortunately, because he did nothing to bring Congress on board before going and made no real effort to ask for approval, it is likely near impossible to get it now. (It actually seems that he actively discouraged getting a resolution - maybe because he thought it would have already been over - and there was no need risk having the amendment fail.) This is far more Obama's fault than the Congress's. He alos was pretty bad in having the Secretaries meet with the committees as regularly as he should have - especially if he wanted to ensure their support.

[paulk]

9. I'm specifically talking about the Obama administration's attempt

to redefine "war"...

" U.S. operations do not involve sustained fighting or active exchanges of fire with hostile forces, nor do they involve the presence of U.S. ground troops, U.S. casualties or a serious threat thereof, or any significant chance of escalation into a conflict characterized by those factors."

I don't see how this can be defended - and it is not a precedent that I am at all comfortable with.,


http://www.foreignpolicy.com/files/fp_uploaded_documents/110615_United_States_Activities_in_Libya_--_6_15_11.pdf

[karynnj]

11. I am not sure that there is a good, commonly agreed upon definition of "war"

Before you can redefine war, you need to define it to begin with.

It is difficult to define when something crosses the line and becomes a war. Clinton bombed Iraq extensively in 1998 at a point where the US and allies really controlled - for the most part - the air. Clinton also committed the US with the UN in the various fights in the former Yugoslavia. Neither of these was declared a war, but most of what we call "wars" were never declared.

I think our involvement in Libya is similar to our involvement in the former Yugoslavia. The differences are that we had a more concentrated role - up front in the first few weeks in Libya than in Yugoslavia and now have less a combat role than we did at later stages in Yugoslavia.

That said, I really think that Obama should have gotten authorization from Congress. It looks to me like this variation of the authorization has accepted a lot of input from Cardin and Durbin. I suspect that they put their names and reputations behind this resolution because they strongly believe it is better to have a limited action authorized by Congress than to have a Constitutional crisis. Notice that there are many heavy weights sponsoring this - Kerry (chair SFRC), Levin (chair Armed Services), McCain (Ranking Member, Armed Services), Durbin (Majority Whip), Kyl (Minority whip). Could it be that they do want Congress to have a voice - and they are codifying that they agree with JUST what Obama is currently doing and adding a deadline?

If this passes, it is good for Obama, good for the Democrats, and it could be seen as strengthening the requirement of getting Congressional approval. (It would have been much easier to pass if Obama had overtly asked for it when he announced his decision to join the UN on this.) It might mean that the SFRC needs to have more hearings on the war powers act and try to more clearly define what war is and how to balance the roles of President and Congress regarding it.

[PurityOfEssence]

14. The War Powers Resolution defines "war" quite clearly:

It's the introduction of armed forces into hostilities or areas where hostilities are imminent.

A guy with a bayonet sent into a war zone would qualify. The apron strings of the Resolution were meant to keep the executive under control when it came to initiating involvement.

[KoKo]

19. John Kerry was on "Morning Joe" yesterday. He said that use of drones and

other high tech advances in military operations had changed what we call war. He seemed to feel that Obama is totally justified in not calling this war or a military action.

I tried to find the interview to post a link...but wading through MSNBC's website for that show is a nightmare.

In all honesty I was really disappointed in the interview that Kerry gave. My impression was that he believes in us staying in Afghanistan and doing these "actions" in other ME countries. He actually said "...we went into Libya to stop a corrupt dictator from murdering his own people." It sounded like what Bush would say. I think if he had won the election he probably would have kept us in Afghanistan and done what Bush/Obama have done with Iraq. It was a chilling interview, revealing a side of Kerry I didn't think was there.

Using drones seems to make it legit for US to take out anyone anywhere. It's not considered a problem by folks in power anymore.

[ellisonz]

22. I'd definte it as an U.N. Peacekeeping Mission.

Gaddafi can't keep the peace, can't deal with having peace, and frankly like an old mobster knew it would come to this.

I think our level of participation is entirely consistent with our signature to the U.N. Charter which specifically authorizes regional organizations take such action with U.N. blessings.

This is why we should just sign onto the I.C.C. - prove they're a war criminal and frankly their dead to rights.

[mkultra]

2. I guess James Fallows hates the UN

[Enrique]

3. that's a good point

the UN approval undercuts Fallows's argument about it being "one man's" decision.

[muriel_volestrangler]

6. Here's a good argument about the importance of the UN resolution

from a professor expert in international law:

President Obama has decided that the US will continue to participate with other NATO members in military actions authorized by the UN Security Council in Resolution 1973 (March 17, 2011), which "(a)uthorizes Member States ... to take all necessary measures ... to protect civilians and civilian populated areas under threat of attack in" Libya. The Security Council has authority to authorize such measures under Articles 39 and 42 of the UN Charter in response to "any threat to the peace, breach of the peace, or act of aggression."

In this instance, the Council has decided that attacks on and continued threats to civilians and civilian populated areas in Libya "continue to constitute a threat to international peace and security" and the Council has decided to authorize all such protective measures, including the creation of a no-fly zone. The Security Council's decision to authorize force is therefore binding on members under Articles 25 and 48 of the Charter, but because it merely authorizes force and does not require members to engage in such enforcement measures, each member has some discretion whether to join.

Although the US use of force in compliance with the Security Council resolution is permissible under international law, is President Obama's continued use of force also permissible under our Constitution without special congressional approval? In my view, the answer is clearly yes.

Some have argued that US participation after 90 days violates the War Powers Resolution, but even a quick read of the congressional resolution demonstrates that this is not correct. First, one should note that Section 2(c) of the Resolution (setting forth its "Purpose and Policy") merely speaks to the powers of the President as Commander-in-Chief and does not address the constitutionally-based powers of the President as the Executive under Article II, Section 1, of the Constitution. Additionally, it does not address the constitutionally-based duty and concomitant authority of the President under Article II, Section 3, to "take Care that the Laws be faithfully executed." As the Executive with power and authority to execute laws, and especially with the unavoidable mandate that the President "shall take Care that the Laws be faithfully executed," and given the fact that treaties of the United States (such as the UN Charter) are supreme federal laws, it is evident that the President has constitutionally-based authority to faithfully execute US competencies under the Charter outside of the President's independent authority as Commander-in-Chief.

http://jurist.org/forum/2011/05/jordan-paust-libya-war-powers.php

via Balloon Juice. And Paust is no neocon, but the author of Beyond the Law: The Bush Administration's Unlawful Responses in the "War" on Terror.

[Vattel]

10. Dumb argument.

Treaties cannot deprive the full Congress of its constitutionally granted war powers. If some clause of a treaty (even the UN Charter) requires the United States to enter a war without a declaration of war by Congress, then that clause is not valid. The Courts have long recognized that where treaties and the Constitution conflict, the Constitution takes precedence.

[mkultra]

12. your argument is dumb

The constitution spells out that all treaties become law of the land. Article VI, paragraph 2 actually stipulates on the issue: "...all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

Congress cannot legislate away constitutional directives.

[Hosnon]

13. I don't think either argument is dumb.

The interplay between constitutional provisions can get very messy very quickly. And the constitutional authority over war is fragmented in an undefined way between the President and Congress.

There are sound legal arguments both ways.

[mkultra]

15. assuming one point of view or the other is dumb

Thus the stupidity of the preceding argument.

[Vattel]

16. You are out of your element.

[mkultra]

17. I guess i shouldnt go against a Sicilian when death is on the line

inconceivable

[Vattel]

18. lol, at least you have good taste in movies

[Mimosa]

4. Astute commentary.

Thanks, KoKO.

[Proud Liberal Dem]

5. Why doesn't Congress just hold a vote and let the chips fall where they may?

:shrug:

If Congress approves of it, then it can continue- with full sanction (and compliance with the WPA). If Congress does not approve, then we have to pull out.

[karynnj]

8. It seems that Obama and the senate leadership was not eager to put it to a vote

It may be that Obama thought it was not worth risking a losing vote - on something that could be over within the 90 days.

[bemildred]

20. That would cause a "Constitutional Crisis" because it would be ignored.

Not the first time either.

[Hippo_Tron]

21. Because the war powers act isn't enforceable

And yet, for some reason, we like to live under the false sense that it is enforceable. By not challenging the President on this, we all get to believe that congress COULD stop him via the WPA but they won't.