War Powers Act

Beltway Lotharios and the Cycle of Scandal

For the last two weeks the media has gorged on a non-stop litany of stories concerning the single most important issue facing our nation. Would that be the “unexpected” reports of almost non-existent private sector job growth and an economy that, despite Obama’s reassurances, may be on the brink of a double-dip recession? No. Is it Obama’s violation of the War Powers Act with our continued “kinetic military action” in Libya? Nuh-uh. Maybe it’s Sixth Circuit’s review of the ObamaCare case (nope) or the Federal Reserve’s warning that the political body must act responsibly in order to stave off an economic collapse? Wrong again.

Based on the 24-hour saturation in the news cycle and the sheer number of stories written and aired, clearly the most important issue facing our nation is that a skinny New Yorker with an incredibly overinflated sense of his own worth had to finally admit, after days of vehement protests to the contrary, that it was indeed he who sent the lewd photographs of his genitalia, as well as sexually charged and explicit texts, to college-aged women. These women, who include a porn star, are young enough to be his daughters.

And so unravels the scandal of Rep. Anthony Weiner (D-NY), possibly the most obnoxious and arrogant member of Congress now that former Rep. Alan Grayson (D-FL) was defeated in the last election. Weiner, considered a rising star in the Democrat Party and a likely candidate to be the next mayor of New York, instead is tearfully admitting to the nation his indiscretions which have been going on for several years, and with at least a half dozen women. Watching his fall from glory, a Brooklyn-born Icarus plummeting towards earth, the proverbial wax of his wings melted by his own flaming ego, it is hard not to feel just a little sorry for him…at least until you remember that these indiscretions occurred both before and after his marriage to his wife Huma, who is now pregnant.

John McCain apparently hasn’t read the Constitution

It comes as no surprise that Sen. John McCain (R-AZ) is clamoring for war against Syria. He’s been one of the loudest voices pushing the Obama Administration to fund rebels — including an al-Qaeda affiliate, al-Nusra Front — who are fighting Bashar al-Assad’s regime.

But McCain, in his desire for war, is criticizing President Barack Obama for going to Congress to seek authorization for military force in the Middle Eastern country. During an interview with MSNBC’s Morning Joe, the Old Guard Republican said that he is worried about having “535 commanders in chief,” referencing Congress:

In a slew of media appearances Tuesday morning, McCain said he would not vote for a resolution that doesn’t do enough in Syria, nor one that significantly constrains the president’s powers.

“I think it would be a very serious situation where we are now 535 commanders in chief. Look, the president of the United States is the only commander,” McCain said on MSNBC’s “Morning Joe” on Tuesday. “Other presidents have acted in keeping with the War Powers Act. And so I think that it would be, frankly, it would be a risk. If I thought it was a meaningless resolution that constrained the president from doing what’s necessary, I couldn’t vote for it.”

The Arizona Republican said if a resolution in Congress doesn’t meet certain criteria, he won’t support it, even though he stands by what he said in front of the White House on Monday, that it would be “catastrophic” if the vote in Congress fails.

No, the War Powers Act does not authorize unilateral executive preemptive military action

After the recent chemical attack by the Syrian government on its rebelling citizens, the war drums in Washington DC are rumbling. Ships are positioned, missiles are pointed, sabres are rattled, allies are consulted, the UN is in motion (sluggish, corrupt, meaningless motion). But can the President alone make the decision to attack another nation’s government or military forces? According to the Constitution and the War Powers Act of 1973, the answer is absolutely NO.

After decades of war in Korea and Vietnam without congressional authorization, Congress passed the War Powers Resolution (commonly known now as the War Powers Act) specifically to make explicit limits on the President’s authority to engage in military action. It states that the President can engage in hostilities under only three conditions: a Congressional declaration, other Congressional authorization, or in retaliation for an attack on America.

Section 1541(c)

U.S. sends troops to Niger

Mali

President Barack Obama came a step closer to engaging in military action in Mali. The Associated Press reports this morning that the White House has notified Congress that 100 military personnel have been sent to Niger, which borders Mali to the east:

In a letter to Congress, Obama says the forces will focus on “intelligence sharing” with French troops fighting Islamist militants in neighboring Mali. He says the American forces have been deployed with weapons, quote, “for the purpose of providing their own force protection and security.”

The U.S. and Niger signed agreement last month spelling out legal protections and obligations of Americans who might operate from the African nation. But U.S. officials declined at the time to discuss specific plans for a military presence in Niger.

The French military has been battling Islamic militants in Mali, but they’re expected to begin a troop withdrawal in the next month, turning over operations to African military forces. This withdrawal comes despite new skirmishes with radicals.

Even though the presence of American troops in the region is small, we’re involved in yet another conflict with against a forces who don’t represent any real threat to us. Not to mention that it’s another undeclared war, as Ron Paul recently explained, with a good risk of escalating.

Ron Paul: United States involved in another undeclared war

The situation in Mali is becoming increasingly tense. Our own Travis Thornton recently touched on what’s going on in the Saharan nation, noting that the problem there “comes as a consequence of NATO’s 2011 Libyan intervention, in which the United States involved itself without congressional approval.

The country’s interim president, Dioncounda Traore, has ruled out any discussions with Islamic militants, putting the prospect of a peaceful ending to the violence out of reach. And while French military forces have been able to handle the situation to this point, there is a chance that the United States may intervene.

Earlier this week, Ron Paul, who recently retired from Congress and twice ran for the Republican Party’s presidential nomination, explained that the United States is involved in yet another military action without the consent of Congress:

President Obama last week began his second term by promising that “a decade of war is now ending.” As he spoke, the US military was rapidly working its way into another war, this time in the impoverished African country of Mali. As far as we know, the US is only providing transport and intelligence assistance to France, which initiated the intervention then immediately called Washington for back-up and funding. However, even if US involvement is limited and, as Defense Secretary Leon Panetta said, US boots on the ground are not being considered “at this time,” this clearly is developing into another war. As usual, the mission is creeping.

Rand Paul clarifies foreign policy position on Israel

Rand Paul

During an interview with Breitbart.com last week, Ben Shapiro posed a question to Sen. Rand Paul (R-KY) about a hypothetical attack on Israel that has become a source of some controversy in the blogosphere, particularly among those of us who have been critical of the foreign policy direction of United States in recent years.

“Does the United States stand with Israel, in terms of giving military foreign aid?” asked Shapiro. Sen. Paul responded, “Well absolutely, we stand with Israel, but what I think we should do is announce to the world, and I think it is well-known, that any attack on Israel will be treated as an attack on the United States.”

Sen. Paul was critical of the foreign policy views of President Barack Obama during the confirmation hearing of Sen. John Kerry (D-MA), who has been nominated to serve as the next Secretary of State. He was also critical of Mitt Romney, the Republican nominee for president in 2012, who advanced the idea that a president can unilaterally go to war without congressional approval.

Doug Stafford, Sen. Paul’s Chief of Staff, recently clarified the remarks in an e-mailed statement.

Rand Paul challenges John Kerry on War Powers Act

John Kerry

Sen. John Kerry (D-MA), who has been nominated by President Barack Obama to serve as the next Secretary of State, appeared before the Senate Foreign Relations Committee yesterday to discuss the administration’s foreign policy. While the confirmation hearing was mostly easy for Kerry, he did face a tough line of questioning from Sen. Rand Paul (R-KY).

Paul, who has been a frequent critic of the prevailing foreign policy views of both parties, asked Kerry about his views regarding unilateral war, specifically regarding military action in Libya.

“I agree with candidate Barack Obama, who said in 2007 that the president doesn’t have the power under the Constitution to unilaterally authorize a military attack,” explained Paul. “I’d like to know if you agree with candidate Barack Obama or President Barack Obama, who took us to war in Libya without congressional authority, unilaterally?”

Kerry responded, “Well, Senator Paul, one of the things this committee has spent a lot of time on is the War Powers Act, which I support, and I believe in congressional authority to go to war.” However, Kerry tried to give himself some latitude, explaining that “are occasions which I have supported which a President of the United States has to make a decision immediately and implement that decision, execute on it, immediately.” Kerry listed occasions where he has supported a president bypassing Congress, explaining that he though President Obama went with that tradition when he authorized military action in Libya.

Rand Paul slams Mitt Romney on war powers

Earlier this week, I noted that Mitt Romney had taken a view of presidential war powers that was even more troubling than that of President Barack Obama, who had taken part in a bombing campaign of Libya without congressional approval. Romney told Bob Schieffer, host of Face the Nation, that he didn’t need authorization from Congress to go to war with Iran.

For all the recent talk from our conservative friends about executive overreach by President Obama, Romney comments are perhaps even more startling given the potential consquences of unilaterally going to war with Iran, both from constitutional and foreign policy perspectives. And even though he has endorsed him, Sen. Rand Paul (R-KY) isn’t happy with Romney’s recent declaration:

I do not yet know if I will find a Romney presidency more acceptable on foreign policy. But I do know that I must oppose the most recent statements made by Mitt Romney in which he says he, as president, could take us to war unilaterally with Iran, without any approval from Congress. His exact words were:

I can assure you if I’m president, the Iranians will have no question but that I will be willing to take military action if necessary to prevent them from becoming a nuclear threat to the world. I don’t believe at this stage, therefore, if I’m president that we need to have a war powers approval or special authorization for military force. The president has that capacity now.

This is a misreading of the role of the president and Congress in declaring war.

Should risk be a factor for War Powers Act?

President Obama is coming dangerously close to the deadline for withdrawal of all US troops from the Libyan theater of operations in accordance with the War Powers Act.  However, the White House denies that the War Powers Act applies since American troops aren’t exposed to significant risk because Libyan forces aren’t able to return fire in a “meaningful way”.  However, does risk to American troops matter in regard to whether the president can engage in warfare?

The Constitution gives authority for waging war in all ways except on how to fight a war to Congress.  The president is Commander in Chief and is ultimately responsible for how a war is fought because leadership by committee is fine for crafting laws, but suicide in combat.  Under President Nixon, the War Powers Act was created as a mechanism for dealing with that president’s use of the military.

Even as recently as the Gulf War, warfare automatically meant troops would be in harms way.  Today, that’s a very different case.  In the case of Libya, the White House argues that the US role is primarily support and that American lives aren’t at risk.  Maybe that makes a difference to some folks, but not so much to me.  I’m not alone either.  Jack Goldsmith, who worked for President Bush in the Justice Department’s Office of Legal Counsel, told the New York Times:

“The administration’s theory implies that the president can wage war with drones and all manner of offshore missiles without having to bother with the War Powers Resolution’s time limits,” Mr. Goldsmith said.

Obama to Congress: Libya is none of your concern

It looks like we’re headed towards a showdown as the Obama Administration has sent a report to Congress explaining that the legislative body has no authority over military operations in Libya because they contend that we’re really not at war:

In a 38-page report sent to lawmakers describing and defending the NATO-led operation, the White House said the mission was prying loose Col. Muammar el-Qaddafi’s grip on power.

In contending that the limited American role did not oblige the administration to ask for authorization under the War Powers Resolution, the report asserted that “U.S. operations do not involve sustained fighting or active exchanges of fire with hostile forces, nor do they involve U.S. ground troops.” Still, the White House acknowledged, the operation has cost the Pentagon $716 million in its first two months and will have cost $1.1 billion by September at the current scale of operations.
[…]
“We are acting lawfully,” said Harold H. Koh, the State Department legal adviser, who expanded on the administration’s reasoning in a joint interview with the White House counsel, Robert Bauer.

The two senior administration lawyers contended that American forces had not been in “hostilities” at least since early April, when NATO took over the responsibility for the no-fly zone and the United States shifted to primarily a supporting role — providing refueling and surveillance to allied warplanes, although remotely piloted drones operated by the United States periodically fire missiles, too.


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