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Monday, June 20, 2011

Are We A Nation Of Laws Or A Nation Of Men?

““The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States; To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water.” Article I, Section 8, Item 10 of the Constitution of the United States.”

The War Powers Act of 1973 (50 U.S.C. 1541-1548) is a federal law intended to check the power of the President in committing the United States to an armed conflict without the consent of Congress. The resolution was adopted in the form of a United States Congress joint resolution; this provides that the President can send U.S. armed forces into action abroad only by authorization of Congress or in case of "a national emergency created by attack upon the United States, its territories or possessions, or its armed forces."

The War Powers Act requires the President to notify Congress within 48 hours of committing armed forces to military action and forbids armed forces from remaining for more than 60 days, with a further 30 day withdrawal period, without an authorization of the use of military force or a declaration of war. The resolution was passed by two-thirds of Congress, overriding a veto by then President Richard Nixon.

Despite the apparent non-ambiguity of its language, the War Powers Resolution has been regularly ignored by presidents of both parties, some even declaring their belief that the act is unconstitutional.

Under the United States Constitution, war powers are divided. Congress has the power to declare war, raise and support the armed forces, control the war funding (Article I, Section 8), and has "Power to make all Laws which shall be necessary and proper for carrying into Execution all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof", while the President is commander-in-chief of the military (Article II, Section 2). It is generally agreed that the commander-in-chief role gives the President power to repel attacks against the United States and makes the President responsible for leading the armed forces. In addition and as with all acts of the Congress, the President has the right to sign or veto congressional acts, such as a declaration of war.

Today marks the 91st day of our military actions in Libya and President Obama has yet to go before the Congress of the United States and explain why we are involved in Libya and ask for Congressional approval of his actions. This is a prima facie case that he is in violation of the War Powers Act.

According to the Library of Congress Web Site:

“The term "Resolution" can be misleading; this law originated as a Joint Resolution and was passed by both Houses of Congress pursuant to the Legislative Process, and has the same legal effect as a Bill which has passed and become a law. For more information on Bills and Joint Resolutions see this explanation of Congressional Forms of Action.

The Constitution of the United States divides the war powers of the federal government between the Executive and Legislative branches: the President is the Commander in Chief of the armed forces (Article II, section 2), while Congress has the power to make declarations of war, and to raise and support the armed forces (Article I, section 8). Over time, questions arose as to the extent of the President's authority to deploy U.S. armed forces into hostile situations abroad without a declaration of war or some other form of Congressional approval. Congress passed the War Powers Resolution in the aftermath of the Vietnam War to address these concerns and provide a set of procedures for both the President and Congress to follow in situations where the introduction of U.S. forces abroad could lead to their involvement in armed conflict.

Conceptually, the War Powers Resolution can be broken down into several distinct parts. The first part states the policy behind the law, namely to "insure that the collective judgment of both the Congress and the President will apply to the introduction of United States Armed Forces into hostilities," and that the President's powers as Commander in Chief are exercised only pursuant to a declaration of war, specific statutory authorization from Congress, or a national emergency created by an attack upon the United States (50 USC Sec. 1541).

The second part requires the President to consult with Congress before introducing U.S. armed forces into hostilities or situations where hostilities are imminent, and to continue such consultations as long as U.S. armed forces remain in such situations (50 USC Sec. 1542). The third part sets forth reporting requirements that the President must comply with any time he introduces U.S. armed forces into existing or imminent hostilities (50 USC Sec. 1543); section 1543(a)(1) is particularly significant because it can trigger a 60 day time limit on the use of U.S. forces under section 1544(b).

The fourth part of the law concerns Congressional actions and procedures. Of particular interest is Section 1544(b), which requires that U.S. forces be withdrawn from hostilities within 60 days of the time a report is submitted or is required to be submitted under Section 1543(a)(1), unless Congress acts to approve continued military action, or is physically unable to meet as a result of an armed attack upon the United States. Section 1544(c) requires the President to remove U.S. armed forces that are engaged in hostilities "without a declaration of war or specific statutory authorization" at any time if Congress so directs by a Concurrent Resolution (50 USC 1544). Concurrent Resolutions are not laws and are not presented to the President for signature or veto; as a result the procedure contemplated under Section 1544(c) is known as a "legislative veto" and is constitutionally questionable in light of the decision of the United States Supreme Court in INS v. Chadha, 462 U.S. 919 (1983). Further sections set forth expedited Congressional procedures for considering proposed legislation to authorize the use of U.S. armed forces, as well as similar procedures regarding proposed legislation to withdraw U.S. forces under Section 1544(c) (50 U.S. 1545-46a).

The fifth part of the law sets forth certain definitions and rules to be used when interpreting the War Powers Resolution (50 USC 1547). Finally, the sixth part is a "separability provision" and states that if any part of the law is held (by a court) to be invalid, on its face or as applied to a particular situation, the rest of the law shall not be considered invalid, nor shall its applicability to other situations be affected (50 USC 1548).

U.S. Presidents have consistently taken the position that the War Powers Resolution is an unconstitutional infringement upon the power of the executive branch. As a result, the Resolution has been the subject of controversy since its enactment, and is a recurring issue due to the ongoing worldwide commitment of U.S. armed forces. Presidents have submitted a total of over 120 reports to Congress pursuant to the Resolution.

The War Powers Resolution was the formal mechanism by which Congress hoped to take back from presidents some of its original foreign policymaking authority. Its important provisions are as follows. First, the resolution states that a president may legitimately act as Commander in Chief only when there is a declaration of war, specific statutory authorization to use force, or a national emergency created by an attack upon the United States, its territories or possessions, or its armed forces. Second, the act requires the president to consult Congress prior to committing troops and to continue doing so as long as troops remain on the ground. Third, and most crucially, the resolution requires a president, when engaging in hostilities "or enter[ing] into situations where imminent involvement in hostilities is clearly indicated by the circumstances," to file a report to Congress within forty-eight hours. The filing of this report then starts the "clock": after sixty days, the president must withdraw the troops. (If circumstances are such that it is impossible to get the forces out, thirty additional days are added.)

Most recently, the debate over the war powers has centered on two issues: the War on Terror that began in response to the terrorist attacks of September 11, 2001 and the 2003 invasion of Iraq. The perceived urgency of these situations led Congress in both instances to support, with resolutions clearly authorizing the use of force, President George W. Bush's decision to send troops into battle. On both occasions, Congress asserted that its use-of-force authorizations were consistent both with its constitutional responsibility and with the War Powers Resolution. Because the House and Senate were in substantial agreement about the need to use military force at the outset of these conflicts, the restrictions of the War Powers resolution never became a subject of meaningful debate. Furthermore, as the post-invasion occupation of Iraq became more costly and controversial, congressional dissenters were more apt to look toward the 2004 presidential campaign than to the mechanism of the War Powers act for a change in policy.

Experience has shown that the War Powers Resolution is less effective as a legal instrument than as a means by which Congress can muster an institutional stance when dealing with foreign-policy issues. Congress's inability to force the president to conform to the legislation's requirements is underlined by the courts' refusal to provide judicial enforcement of its provisions. Nevertheless, the Congress has recourse to the statute's language and spirit when it wishes to assert its prerogatives against those of the executive. The War Powers Resolution makes it easier than was previously the case for members of Congress to persuade their peers that a president is overstepping the bounds of constitutional authority and engaging in actions that belong to the legislature.

Yet, in the seemingly endless and borderless War on Terror, the presidential need to respond quickly and decisively to unconventional, surprise attacks on American interests has undermined the effectiveness of the resolution. Executive-branch institutions such as the Central Intelligence Agency are critical to the successful prosecution of the war, and the American people are unlikely to countenance obstructions to presidential efforts to destroy terrorist threats with force. In a new world characterized by a combination of American hegemony and terroristic resistance to that hegemony, the president's constitutional authority to use military force in emergency situations has cemented for the foreseeable future the executive branch's supremacy in the field of war-making. Even in this uncertain era of persistent and sudden military activity, however, should the American people and their congressional representatives sense that a president is needlessly and improperly risking the lives of American troops—and the occupation of Iraq has stirred such debate—the War Powers Resolution remains available to Congress as a way to structure the broader debate.

In 2001 in the wake of the terrorist attacks on the World Trade Center and the Pentagon, Congress passed Public Law 107-40, authorizing President George W. Bush to "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons." For the first time, "organizations and persons" are specified in a Congressional authorization to use force pursuant to the War Powers Resolution, rather than just nations.

And again in 2002 Congress authorized President George W. Bush to use force against Iraq, pursuant to the War Powers Resolution, in Public Law 107-243.

Much to the chagrin of those on the left who chanted so often “Bush lied people died” President Bush did in fact receive Congressional approval for his actions in Afghanistan and the invasion of Iraq. Reasons and intelligence failures aside President Bush followed the law, even though he and many of his supported thought it unconstitutional. That issue is a matter for the Supreme Court to deal with should the case come before it. It is not for any president, no matter what political party, do determine on his own. As long as it is the law it must be followed.

On June 17th the New York Times reported that 2 top lawyers lost to Obama in Libya war policy debate:

“President Obama rejected the views of top lawyers at the Pentagon and the Justice Department when he decided that he had the legal authority to continue American military participation in the air war in Libya without Congressional authorization, according to officials familiar with internal administration deliberations.

Jeh C. Johnson, the Pentagon general counsel, and Caroline D. Krass, the acting head of the Justice Department’s Office of Legal Counsel, had told the White House that they believed that the United States military’s activities in the NATO-led air war amounted to “hostilities.” Under the War Powers Resolution, that would have required Mr. Obama to terminate or scale back the mission after May 20.

But Mr. Obama decided instead to adopt the legal analysis of several other senior members of his legal team — including the White House counsel, Robert Bauer, and the State Department legal adviser, Harold H. Koh — who argued that the United States military’s activities fell short of “hostilities.” Under that view, Mr. Obama needed no permission from Congress to continue the mission unchanged.

Presidents have the legal authority to override the legal conclusions of the Office of Legal Counsel and to act in a manner that is contrary to its advice, but it is extraordinarily rare for that to happen. Under normal circumstances, the office’s interpretation of the law is legally binding on the executive branch.

A White House spokesman, Eric Schultz, said there had been “a full airing of views within the administration and a robust process” that led Mr. Obama to his view that the Libya campaign was not covered by a provision of the War Powers Resolution that requires presidents to halt unauthorized hostilities after 60 days.”

The Merriam-Webster Dictionary defines “hostility” as; hostile action (2) plural : overt acts of warfare If President Obama believes his actions in Libya do not constitute “warfare” he should ask the people of Tripoli on whose heads we are dropping bombs.

Yesterday NATO admitted bombing civilians in Tripoli. Fox News reported that NATO admits to 9 civilian deaths in Libyan airstrike:

“Libya's government said NATO warplanes struck a residential neighborhood in the capital Sunday and killed nine civilians, including two children. Hours later, NATO confirmed one of its airstrikes went astray.

The incident gave supporters of Muammar al-Qaddafi's regime a new rallying point against the international intervention in Libya's civil war. The foreign minister called for a "global jihad" on the West in response.

Early Sunday morning, journalists based in the Libyan capital wereLibya rushed by government officials to the damaged building, which appeared to have been partly under construction. Reporters were later escorted back to the site, where children's toys, teacups and dust-covered mattresses could be seen amid the rubble.”

In a statement issued late Sunday at Brussels headquarters, the trans-Atlantic alliance said airstrikes were launched against a military missile site in Tripoli, but "it appears that one weapon did not strike the intended target and that there may have been a weapons system failure which may have caused a number of civilian casualties."

"NATO regrets the loss of innocent civilian lives and takes great care in conducting strikes against a regime determined to use violence against its own citizens," said Lt. Gen. Charles Bouchard, commander of the anti-Libya operation.”

In another report Libya's government said a NATO airstrike west of Tripoli early Monday on a large family compound belonging to a close associate of Muammar Qaddafi has killed at least 15 people, including three children. If this isn’t warfare then I don’t know what warfare is.

The Libyan mission, defines as a “kinetic military action” began as imposing a “no-fly zone” over Libya for the purpose of grounding Qaddafi’s air force from attacking the “rebels” in Benghazi, and Misrata for so called “humanitarian” purposes. It soon escalated to attacking Qaddafi’s ground forces as they advanced on the rebels. Now, with the usual mission creep, it has morphed into bombing targets in Tripoli. Again, according to Obama these cannot be defined as hostilities.

Obama has claimed on numerous occasions that Col. Qaddafi must go, but so far he is still in charge of Libya. If we want to get Qaddafi there an easier and quicker ways to do it, just ask Osama bin Laden.

The War Powers Act states; “specific statutory authorization to use force, or a national emergency created by an attack upon the United States, its territories or possessions, or its armed forces.” To my knowledge Qaddafi has neither attacked nor threatened to attack the United States or any other NATO signatory. You might claim he bombing of Pan Am 103 was such an attack, but Qaddafi has admitted Libya’s involvement and made restitution to the families of the victims. In fact, after the U.S. Invasion of Iraq Qaddafi announced he would surrender all weapons of mass destruction and not pursue any pursue any such programs.

What national interest does the bombing of Libya protect? We get very little oil from them. They do not threaten Israel and their other neighbors. They do, however, provide a lot of oil to Europe and the UK. NATO, the UN and the Arab League have dragged Obama willing into this bombing campaign against Libya. He believes that with UN approval he can do what he wants without the approval of Congress.

assad640No one with any common sense claims Qaddafi is nothing but Middle Eastern dictator, but so is Syria’s President Bashar Assad. He has killed, wounded or imprisoned thousands of his citizens. He has driven them into refugee camps on the Turkish border.

No doubt the Congress would grant Obama the authority to continue our military action in Libya. Senators like Lindsey Graham and John McCain are hawks on this issue. In fact McCain is one of Obama’s biggest supporters of the Libyan intervention. This is not about the pros and cons of our involvement in Libya, it’s about a president who believes he is above the law, even if that law has dubious Constitutional support.

This is just another example of the imperial presidency of Barack Obama. It’s time for Congress to act by either cutting off the funding for Obama’s war or consider the “I” word.

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