Tag: Libya

The End of the War Powers Resolution

By
John Samples

Today is the 60th day since President Barack Obama notified Congress “U.S. military forces commenced operations to assist an international effort authorized by the United Nations (U.N.) Security Council and undertaken with the support of European allies and Arab partners, to prevent a humanitarian catastrophe and address the threat posed to international peace and security by the crisis in Libya.”

The War Powers Resolution of 1973 said that within 60 days of notifying the Congress of the use of force “the President shall terminate the use of United States Armed Forces” unless Congress has declared war or authorized the use of force, extended the 60 day period, or is physically unable to meet because the nation has been attacked.

President Obama has a few hours to go, but I doubt that he will stop American air attacks in Libya. Indeed, the attacks have spread to Libyan ships to counter Qadaffi’s forces.

Like earlier presidents, Obama said his notification of hostilities in Libya was “consistent with the War Powers Resolution.” Now the administration has apparently decided to ignore the law completely. Obama has not sought congressional approval for the bombing. He follows the example of Bill Clinton, who ordered air strikes in Bosnia in 1995 without seeking congressional approval.

Even if you put aside the War Powers Resolution, the U.S. Constitution clearly requires congressional approval of our war in Libya. The legal scholar Michael Ramsey notes:

Every major figure from the founding era who commented on the matter said that the Constitution gave Congress the exclusive power to commit the nation to hostilities.  Notably, this included not only people with reservations about presidential power, such as James Madison and Thomas Jefferson, but also strong advocates of the President’s prerogatives, such as George Washington and Alexander Hamilton.  As President, Washington on several occasions said that he could not undertake offensive military actions without Congress’ approval.  Hamilton is especially significant, because his views on the need for a strong executive went far beyond those of his contemporaries.  Yet Hamilton made it very clear that he read the Constitution not to allow the President to begin a war — as he put it at one point, “it belongs to Congress only, to go to war.”

(See also Ramsey’s article “Textualism and War Powers,” 69 University of Chicago Law Review 1543 (2002)

Candidate Barack Obama agreed in 2007 that “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.” Colonel Qaddafi’s forces, of course, posed an imminent threat to Libyan nationals engaged in the recent civil war in that nation. How did the Colonel or his army threaten Americans?

This time around, Congress has offered less resistance than in earlier presidential uses of force in Haiti, Bosnia, and Kosovo. They have not roused themselves even to pass a non-binding “sense of the Congress” resolution that the President should seek approval. In the 1990s, there were actual debates in Congress about the wisdom and constitutionality of various wars. Now, silence. It is easy to violate the constitutional domain of a body that is unwilling to collectively defend its powers and unwilling to take up the responsibility of their exercise.

The War Powers Resolution never worked in practice as intended. It is now moribund and should be replaced by a new effort in the courts or Congress to apply the original public meaning of the Constitution and thereby right the balance between starting and making war.

Topics: 
Government and Politics, Law and Civil Liberties, Political Philosophy

Will Obama Comply with the War Powers Resolution?

By
Christopher A. Preble

Six Republican senators are challenging President Obama’s authority to conduct an open-ended war in Libya without congressional authorization. The six conservative lawmakers (Rand Paul (R-KY), Jim DeMint (R-SC), Mike Lee (R-UT), Ron Johnson (R-WI), Tom Coburn (R-OK), and John Cornyn (R-TX)) sent a letter to the president on May 18th asking if he intends to comply with the War Powers Resolution. The full text of the letter can be found here.

The law stipulates that the president must terminate military operations within 60 days, unless Congress explicitly authorizes the action, or grants an extension. The clock on the Libya operation started ticking on March 21, 2011. Congress has neither formally approved of the mission, nor has it granted an extension. Therefore, the 60-day limit expires tomorrow, May 20th.

Last week at The Skeptics, I noted Deputy Secretary of State James Steinberg’s testimony before the Senate Foreign Relations Committee, in which he suggested that the administration wanted to comply, but was consulting with Congress about how to do so. The New York Times presented some of the creative ideas that the administration was considering in order to adhere to circumvent the law. But the senators can read the Times, too. In their letter to the president, they write:

Last week some in your Administration indicated use of the United States Armed Forces will continue indefinitely, while others said you would act in a manner consistent with the War Powers Resolution. Therefore, we are writing to ask whether you intend to comply with the requirements of the War Powers Resolution. We await your response.

Let me be clear about one thing: I’m not a huge fan of the War Powers Resolution, per se. To me, it is silly, sort of like a law that affirmed the Congress’s authority to levy taxes, borrow and coin money, and establish Post Offices. In the same section where these powers are delegated, the Constitution clearly stipulates that Congress shall have the power to declare war. So why does there also need to be legislation?

Most presidents have complied with the spirit of the War Powers Resolution, but more out of deference to the notion that Congress has some role in whether the United States goes to war, not out of genuine conviction that Congress does/should have the most important role in deciding such things. By all appearances, President Obama is bypassing the charade.

I anxiously await his response to the senators’ letter, and am likewise curious to see if other senators raise questions about the administration’s intentions.

Topics: 
Foreign Policy and National Security, General, Government and Politics

The President’s Next Middle East Speech

By
Christopher A. Preble

The news media is abuzz with speculation about what President Obama will say in an address this Thursday at the State Department. The topic is the Middle East, and White House Press Secretary Jay Carney explained, “we’ve gone through a remarkable period in the first several months of this year…in the Middle East and North Africa,” and the president has “some important things to say about how he views the upheaval and how he has approached the U.S. response to the events in the region.” The speech, Carney hinted to reporters, would be “fairly sweeping and comprehensive.”

If I were advising the president, I would urge him to say many of the same things that he said in his June 2009 speech in Cairo, this time with some timely references to the recent killing of Osama bin Laden, and an explanation of what the killing means for U.S. counterterrorism operations, and for our relations with the countries in the region.

Bin Laden and Ayman al-Zawahiri, al Qaeda’s long-time number two (now, presumably, its number one) railed for years about overthrowing the “apostate” governments in North Africa and the Middle East. And yet, one of the biggest stories from the popular movements that have swept aside the governments in Tunisia and Egypt, and may yet do so in Libya, Syria, Yemen, and Bahrain, is al Qaeda’s utter irrelevance. President Obama won’t need to dwell on this very long to make an important point.

The killing of Osama bin Laden doesn’t signal the end of al Qaeda, but it might signal the beginning of the end. In reality, al Qaeda has been under enormous pressure for years, but that hasn’t stopped the organization from carrying out attacks—attacks which have mainly killed and injured innocent Muslims since 9/11. It is no wonder that al Qaeda is enormously unpopular in the one place where bin Laden and his delusional cronies sought to install the new Caliphate. How’s that working out, Osama?

Al Qaeda had nothing to do with the reform movements that have swept across North Africa and the Middle East; the United States has had little to do with them either. That is as it should be. These uprisings were spontaneous, arising from the bottom up, and they are more likely to endure because they were not imposed by outsiders. Sadly, the same will not be said of the Libyans who rose up against Muammar Qaddafi, without any special encouragement from the United States. If the anti-Qaddafi forces ultimately succeed in overthrowing his four-decades long rule, President Obama’s decision to intervene militarily on their behalf ensures that some will question their legitimacy. The same would be true in Syria, or in Iran, if the United States were seen as having a hand in selecting the future leaders of those countries.

Barack Obama was elected president in part because he publicly opposed the decision to go to war in Iraq at a time when many Americans, including many in his own party, were either supportive or silent. He had a special credibility with the American people, and among people in the Middle East, because he worried that the Iraq war was likely to undermine American and regional security, cost hundreds of billions of dollars, and claim many tens of thousands of lives. Tragically, he was correct.

There is a right way, and a wrong way, to go about promoting human freedom. In Thursday’s speech, I hope that the president reaffirms the importance of peaceful regime change from within, not American-sponsored regime change from without.

The United States remains, as it has been for two centuries, a well-wisher to people’s democratic aspirations all over the world. But we learned a painful lesson in Iraq, and we should be determined not to repeat that error elsewhere. That is a message worth repeating, both for audiences over there, and for those over here.

Cross-posted from The National Interest

Topics: 
Foreign Policy and National Security

René Magritte’s War

By
Justin Logan

The Belgian painter René Magritte is famous in part for the painting pictured below.

What’s surprising is how much Magritte can tell us about our war in Libya. To recap where we are in Libya, our military objective is to “protect civilians” in that country. Except there’s this paragraph opening the recent New York Times article on the war:

WASHINGTON — NATO planners say the allies are stepping up attacks on palaces, headquarters, communications centers and other prominent institutions supporting the Libyan government, a shift of targets that is intended to weaken Col. Muammar el-Qaddafi’s grip on power and frustrate his forces in the field.

The Times also runs these quotes from officials in charge of the war:

“Now we are going after his rear echelon,” one NATO official said. “We are going after his ability to command and control his forces — his headquarters, his command posts, his communications — all those things that allow him to coordinate his attacks at the front.”

Military officials privately acknowledge that removing Colonel Qaddafi from power is the desired secondary effect of striking at state television and other symbols of his authoritarian rule. “His people may see the futility of continued resistance,” one Pentagon official said.

Somebody should probably loop in poor White House Press Secretary Jay Carney, who made the mistake just yesterday of saying the following:

“The goal of the mission is clear: protect the civilian population, enforce the no-fly zone, enforce the arms embargo. [It is] certainly not the policy of the coalition, of this administration, to decapitate, if you will, or to effect regime change in Libya by force.”

So let’s work this out. The United States currently has as a policy objective in Libya to remove Muammar Qaddafi from power. Washington is simultaneously using the military to attack “institutions supporting the Libyan government” in order to “weaken Col. Muammar el-Qaddafi’s grip on power,” but our official position is that doing so is unrelated to our policy objective of getting Qaddafi out of power. Does the administration really think we’re that stupid? Perhaps more importantly, is Congress that stupid?

Also, it may be time for a rundown of terms for which we no longer have adequate working definitions. I nominate:

  • “war”
  • “kinetic military action”
  • “protect”
  • “civilians”
  • “protect civilians”
  • “massacre”
  • “regime change”
  • “target”

Any other nominees?

Topics: 
Foreign Policy and National Security

The Senate’s Interventionist Caucus and Libya

By
Christopher A. Preble

An interesting window into the politics of the Obama administration’s war in Libya may open this week, when Senators Kay Bailey Hutchison (R-TX) and Joe Manchin (D-WV) reintroduce a resolution expressing the sense of the Senate “that it is not in the vital interests of the United States to intervene militarily in Libya,” and calling on NATO member states and the Arab League, two parties who are directly threatened by the violence in Libya, to provide the necessary assets to the mission.

Such resolutions almost never have a direct impact on the conduct of military operations. Hutchison-Manchin isn’t even the first attempt to constrain President Obama’s ability to wage war in Libya. A resolution offered by freshman Senator Rand Paul (R-KY), and cosponsored by Senator Mike Lee (R-UT), went well beyond the question of whether the war advanced vital U.S. national interests, and attempted to reassert the legislature’s control over the warpowers generally. Borrowing from something that then-Senator Barack Obama said in 2007, the resolution read “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.” This language, which likely strikes most Americans as eminently sensible, managed to garner just 10 votes, all from Republicans.

Still, the prospect of a vote on a much narrower resolution must worry the war’s advocates. At a minimum, an up or down vote on Libya will test the strength of the still-vocal interventionist caucus in the U.S. Senate.

These reliably pro-war members took to the Sunday shows to make the case for escalation. On CNN’s State of the Union, Sen. Lindsey Graham called on the Obama administration “to cut the head of the snake off. Go to Tripoli [and] start bombing Qaddafi’s inner circle.” Worries that the uprising might provide cover for al Qaeda to expand its operations in the Maghreb were unfounded, John McCain asserted. McCain’s long-time friend Sen. Joseph Lieberman agreed, explaining on the same program, “We’re in the fight and the political goal is to get Qaddafi out and to help the freedom fighters achieve their own independent Libya. You can’t get into a fight with one foot. You got to get into it.”

How many others in the Senate subscribe to the interventionists’ interpretation of what America’s role in Libya should be is unclear. I have never understood why Republicans would scramble to follow foreign policy advice from a Democrat, and Al Gore’s running mate, no less. Senators McCain and Graham hold more sway among their GOP colleagues, but their outspoken support for a number of other ill-considered ventures, including especially the war in Iraq, likely gives pause to some. Graham’s fellow South Carolinian Jim DeMint, for example, voted in favor of the Paul-Lee resolution, and has otherwise shown no great enthusiasm for adding to the U.S. military’s already full plate. The Boston Globe’s Theo Emery reports today that Massachusetts Senator Scott Brown isn’t yet ready to endorse an escalation of the war. Meanwhile, Maine’s Susan Collins told Emery that the U.S. military’s role in Libya should be limited to intelligence, logistics, and other capabilities that U.S. allies lack.

Who else might vote for Hutchison-Manchin? Presumably those within the Democratic caucus who still think that war is generally a bad thing, even when it is waged by a Democratic president. No Democrat voted for Paul-Lee, but Senator Manchin’s co-sponsorship of this much more narrowly worded resolution should provide cover for centrists, as well as progressives who once reliably opposed wars of choice.

One thing is clear with respect to the war in Libya: politics favors the skeptics. There is no groundswell of public opinion calling for yet another armed nation-building mission in a strategic backwater. Though the costs of the war are small relative to the gargantuan military budget, most Americans can be counted on to oppose wars that do not clearly advance U.S. national security interests, regardless of how much or how little they cost. They are doubly skeptical given that the costs of the wars in Iraq and Afghanistan have vastly exceeded even the most pessimistic of predictions, and have not delivered the security that the advocates for war claimed.

It is a truism that politics doesn’t generally drive foreign policy. People who celebrate America’s role as the world’s policeman don’t expect to reap great political rewards for taking such an unpopular stand. McCain, Graham and Lieberman have always stood apart in that regard. Recall, for example, that John McCain bragged that he would rather lose an election than lose a war. He never appeared to consider that both eventualities were possible. Perhaps some of his fellow senators will.

Cross-posted from The National Interest

Topics: 
Foreign Policy and National Security, Government and Politics

More on Libya and Constitutional War Powers

By
Gene Healy

So it turns out that, per CBO’s numbers, the “epic” budget showdown didn’t even produce enough cuts to pay for a week of bombing Libya.

On that subject, as I noted last week, the Obama administration’s Office of Legal Counsel recently released its memo arguing that our Libyan adventure is constitutional. And that memo is one sorry piece of work.

Over at the Washington Examiner’s “Beltway Confidential” blog, I’ve been commenting on various aspects of the OLC memo, and I thought I’d link to some of that discussion here.

Recently, I addressed two of the OLC’s arguments: (1) that what we’re doing in Libya isn’t “war”; and (2) that the 1973 War Powers Resolution gives the president a 60-to-90-day “free pass” to wage war without congressional authorization. Neither argument comes close to showing that the president’s actions in Libya are legal.

Make no mistake, what we’re doing in Libya amounts to war. Defense Secretary Gates admitted as much recently, albeit reluctantly:

It’s fairly common to hear supporters of unrestrained presidential war power argue that whatever “war” is, it’s far too ambiguous a concept for us to insist that the president be restrained by constitutional niceties like prior congressional approval.

But this is a silly argument.

Yes, there are line-drawing problems with the “Declare War” Clause, as there are with every other clause in the Constitution. That doesn’t mean there are no lines — the color gray isn’t a refutation of the categories “black” and “white.”

And the Libyan intervention is pretty black and white. This is a nondefensive, unprovoked use of force, ordered by our president to, as he put it, prevent a massacre that would have “stained the conscience of the world.” (By the way, there’s good reason to doubt that was the case, Professor Alan Kuperman argues.)

The OLC’s argument that the War Powers Resolution empowers the president to launch “limited” wars fares no better. Put briefly, (1) the WPR makes clear that the president’s constitutional powers are limited to defensive uses of force; (2) the text underscores that the WPR doesn’t purport to add anything to the constitutional powers of the president; and (3) it couldn’t in any event: the Constitution trumps a statute, and, like it or not, the Constitution doesn’t allow the president to start wars.

Even so, the WPR — passed over Richard Nixon’s veto in 1973 to restore congressional control over the decision to go to war — hasn’t much inconvenienced any president since. Perversely, they actually use it as an argument for presidential war-making, which is why it may have done more harm than good, overall [.pdf].

As Charlie Savage pointed out recently in the New York Times, the 60-day clock runs out in mid-May. We’re still bombing Libya now, and President Obama recently approved the use of armed Predator drones there. If this keeps up for another month, then Obama will become the second Democratic president in a row to wage war beyond the WPR’s 60-day limit.

Topics: 
Cato Publications, Foreign Policy and National Security

Tuesday Links

By
George Scoville
Topics: 
Cato Publications

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