President Obama and his legal team have just recently asserted incredible power in war making with the ruling that the “kinetic military action” (there’s some tortured legalese if I’ve ever heard it) Libya does not fall under the War Powers Act, and that therefore, one individual is all it takes for the United States to use its military might against another nation. It does not fall under the War Powers Act because that act does not apply to this conflict- an exclusively aerial war where the Libyan forces have no realistic hope of shooting down our planes. It’s a pretty bad argument, in that the logic it is based on would allow the United States to bomb any nation, at any time, provided we could establish complete air superiority over them. That category, incidentally, covers most nations upon this Earth. Hmmm… now, if only the authors of the War Powers Act had ever decided to define what a “conflict” was, so that we would know what it applied to and what it didn’t. Oh wait….
It totally does define what a conflict is!
The War Powers Resolution of 1973, also known as U.S. Code Title 50, Chapter 33, defines a conflict in § 1543, also known as the Reporting Requirement. Let’s go to the tale of the tape:
In the absence of a declaration of war, in any case in which United States Armed Forces are introduced—
(1) into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances;
(2) into the territory, airspace or waters of a foreign nation, while equipped for combat, except for deployments which relate solely to supply, replacement, repair, or training of such forces; or
(3) in numbers which substantially enlarge United States Armed Forces equipped for combat already located in a foreign nation;
the President shall submit within 48 hours to the Speaker of the House of Representatives and to the President pro tempore of the Senate a report, in writing, setting forth—
(A) the circumstances necessitating the introduction of United States Armed Forces;
(B) the constitutional and legislative authority under which such introduction took place; and
(C) the estimated scope and duration of the hostilities or involvement.
Miss that? Let me repost the first section again for you, with the relevant text highlighting:
In the absence of a declaration of war, in any case in which United States Armed Forces are introduced—
(1) into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances;
(2) into the territory, airspace or waters of a foreign nation, while equipped for combat, except for deployments which relate solely to supply, replacement, repair, or training of such forces; or
(3) in numbers which substantially enlarge United States Armed Forces equipped for combat already located in a foreign nation
See it now? The War Powers Resolution considers deploying U.S. Armed Forces into the airspace of a foreign nation a conflict, provided they are equipped for combat, such as, for example, carrying and dropping bombs. So, this is, in fact, a conflict according to the War Powers Resolution. Otherwise, there would be no need to report such hostilities to the Speaker of the House and the President Pro Tempore of the Senate.
Now, the Reporting Requirement is not a requirement for Congressional approval. It is a requirement to tell the heads of the Senate and House of Representatives, respectively, about the conflict; why it is happening; the expected scale, scope, and duration; etc. However, later in the Resolution, an ultimatum is given:
Within sixty calendar days after a report is submitted or is required to be submitted pursuant to section 1543 (a)(1) of this title, whichever is earlier, the President shall terminate any use of United States Armed Forces
So, after 60 days, and it has been 60 days, the President must with draw U.S. troops. The War Powers Resolution allows for only three exceptions, and these exceptions only apply if Congress:
(1) has declared war or has enacted a specific authorization for such use of United States Armed Forces,
(2) has extended by law such sixty-day period, or
(3) is physically unable to meet as a result of an armed attack upon the United States. Such sixty-day period shall be extended for not more than an additional thirty days if the President determines and certifies to the Congress in writing that unavoidable military necessity respecting the safety of United States Armed Forces requires the continued use of such armed forces in the course of bringing about a prompt removal of such forces.
Sorry for the blocks of text, but I hope that everyone’s eyes haven’t glazed over from the sheer mass of legalese. Anyway, let’s see if any of the exceptions to the 60 day rule apply here:
1) Has Congress declared war or enacted a specific authorization to use U.S. Armed Forces? No.
2) Has Congress extended, by law, the 60 day period of the War Powers Resolution? No.
3). Is Congress physically unable to meet because of an armed attack on the United States? No. In fact, President Obama’s definition rests almost entirely on the opposite of this premise; we are not at war with Libya precisely because they are unable to retaliate.
4) Although this is in the same point as “Is the United States under attack?” (exception #3), and would logically be considered a part of the same idea, this merits its own section. There is one more exception, namely, “Has the President certified, in writing, to Congress, that the safety of the United States Armed Forces requires that they cannot withdrawal immediately? Yes.
Woo. Dodged a bullet there, Obama. So, it is a conflict, it is over sixty (60) days, but luckily, you told Congress in writing that you can’t take boots off the ground immediately without endangering them. Okay, I guess there was no point to this blog post; the war is perfectly legal…
Ooops. Wait a second. This is why you always read the whole thing. The “armed forces safety” exception only allows for “no more than an additional thirty days.” As of Friday, June 16th, that thirty days is past, and any further action in Libya constitutes an illegal war.
Now, some will point out that many Presidential administrations have challenged the War Powers Resolution as an undue infringement on the President’s powers as Commander-in-Chief of the military. Except that is not the argument the Obama administration is using. His administration is not arguing that the act is unconstitutional. His administration is not arguing that the War Powers Resolution wouldn’t apply in other, non-Libya cases. Instead, it is asserting that the War Powers Resolution does not apply to Libya, despite what a plain text reading says.
Furthermore, the Constitutional argument is suspect. The Constitution specifically grants the Congress power to declare war, make treaties, and generally most major aspects of foreign policy in Article 1, Section 8 of the Constitution. If the President has the power to enter into any conflict, any time that he or she or it(for the day when we elect IBM’s Deep Blue as our President, a change which I wholeheartedly support as it would raise the average intelligence of our presidents by an awesome degree) desired, then Congress’ war making power is meaningless. Want to know what we in the United States call a leader who not only can take his country into a war, but also lead it when it gets there? A monarch.
Not to put too fine a point on it, but it is the job of Congress, as the branch with the power to declare war, to decided when and where we go to war. It is the job of the Executive branch, headed by the commander-in-chief, to decide how we got to war, and how we conduct ourselves in war.
So, if the war is illegal, which I have demonstrated it is, what should be done? How should Congress and the American people respond to this executive overreach? Should we simply modify the classic 60s protest song, “Hey, hey, LBJ, how many kids did you kill today?” to somehow rhyme Obama and Libyans, despite the obvious lyrical difficulties that that presents?
Well, if we, as the Obama administration does, accept that the War Powers Resolution is the law of the land, and if we, as the Obama administration does not, have the ability to comprehend what we have read and realize that the War Powers Resolution applies here, then we can reach but one conclusion: Impeachment. I am fairly certain that violating a law, especially a law that governs the conduct of war, falls under the Constitution’s definition of “high crimes and misdemeanors”. To preserve the American system of checks and balances, to preserve the very foundations of our Constitution, President Obama should be impeached.
Now, sadly, in our highly partisan environment, the simple idea that the President usurped the Congress’ war making power and should be impeached because of this cannot be interpreted through anything but a partisan lens. Democrats may criticize the President for overreach, but none will ever dare mention the dread “I” word, while Republicans will gleefully seize upon any chance to boot a President that they already do not like. This call should not be taken in that manner. In should be taken in the manner of Constitutional integrity and proper separation of powers.
Sadly, I can already hear the counterarguments, “But what about President Bush’s illegal war in Iraq?”
To which my response would be, “What illegal war?”
The Iraq War was many things: stupid, poorly executed, poorly planned, the kind of conflict which showed a gross misunderstanding of not only the region which we invaded but also our failure to learn the lessons of the Vietnam War. What it is not, as near as I can tell, is an illegal war. It was authorized by Congress, by a rather overwhelming majority. Yes, the UN did not authorize the use of force, and Kofi Annan, the former UN secretary general, stated that it was illegal, but the Constitution, which is the highest law of the land, supersedes any statements from the UN. Furthermore, if the United States were to require UN authorization for every military action that it undertakes, we should have indicted Presidents Eisenhower, Kennedy, Johnson, and Nixon for the non-UN sanctioned Vietnam War, President Carter for the unsanctioned attempt to rescue hostages in Iran, President Reagan for the U.S. campaign in Beirut, and President Bill Clinton, for the non-Un sanctioned bombing of Kosovo. Essentially, every President since the UN was created has ignored them in matters of war making. We would also have to prosecute President Obama for not immediately withdrawing U.S. troops from Iraq, or, for that matter, for beginning non-UN sanctioned drone attacks in Yemen (secretly, I might add).
Ah, but critics retort, the problem is not the lack of UN sanction, but rather that Bush and his administration lied to get us into Iraq. They claimed there were WMDs and there were not. Given that members of his administration testified to Congress, these lies were uttered under oath. Sadly, this does not make the actual war in Iraq illegal, but the lead up to it could be considered perjury. However, this would be hard to prove; even whistleblowers who have come out have generally stated that evidence of a lack of WMDs was ignored, not pursued and later covered up. It may very well have been lying, but it appears to be lying due to willful ignorance, not lying out of straight faced contempt for the legal process (and yes, being willfully ignorant to evidence that led to a war is incredibly stupid and bad policy, but I am not sure that it is entirely illegal. More on this below).
Yes, had Congress been presented with certain evidenced, it might not have gone to war. But, sadly, President Bush would not be the first President to enter the United States into war under false pretenses:
1) The Mexican-American War, James K. Polk, 1846-1848: Mexico claimed that its border with Texas, and thus the Southern border of the United States, was at the Nueces River. The United States claimed that the border was at the Rio Grande. President Polk ordered Zachary Taylor and his forces into the disputed territory where they were, unsurprisingly, attacked by Mexican forces who saw it as an invasion of Mexico. President Polk therefore initiated the Mexican-American War by claiming that, “American blood has been shed on American soil,” which was untrue. The only Congress member who pointed this out was a young, freshman congressman from Illinois who authored the Spot Resolution, demanding that President Taylor, “Show me the spot where American blood was spilled.” That Congressman only served one term for his troubles. His name? Abraham Lincoln.
2) The Spanish-American War, President William McKinley, 1898: From this war, we get the infamous, and probably apocryphal William Randolph Hearst quote, supposedly to one of his photographers documenting Spanish abuses in Cuba, “You supply the pictures and I’ll supply the war.” The ostensible reason for the war was that Spain had blown up the USS Maine, which McKinley had sent to Cuba to protect U.S. citizens and interests. No report has ever conclusively proven whether the Maine blew up due to internal or external reason; the war was largely a product of public outcry and yellow journalism.
3) The Vietnam War, President Lyndon Baines Johnson, 1955-1975: While the Vietnam War started under Eisenhower, and continued under Kennedy, it did not reach its full, terrible flower under President Lyndon Baines Johnson with the Gulf of Tonkin resolution. Johnson claimed that the U.S. navy had been fired upon on August 4, 1964. A 2005 naval report concluded that this incident in no way happened. While the August 2nd engagement did indeed occur, the August 4th was a bold-faced lie.
This is, of course, not meant to absolve President Bush of any wrong doing. He probably should have been impeached for violating the 4th amendment via warrantless wiretapping, especially as Congress had already established a framework with the FISA courts to allow for secret wiretapping, if necessary. President Bush, though, is out of office, so retroactively impeaching him is pointless.
Yes, President Obama is not the first President to fight a war without Congressional approval. McKinley fought a rebellion in the Philippines with no approval; it’s called the Philippine-American War and it led to Mark Twain forming the Anti-Imperialist League and Rudyard Kipling writing “The White Man’s Burden.” Call me crazy, but I do not think that, when he entered office, neither Obama nor Kipling believed that he would, “Take up the white man’s burden.”
Over the past 11 years, the power of the executive branch has been increasing at the expense of the legislative branch, at the expense of the People’s Branch. We should have disciplined Bush for his executive overreach, but we did not, due to idiotic partisanship. Let us not make the same mistake with President Obama. And the only way to properly discipline a President, who has broken the law, and usurped power, is impeachment.
