Clock Ticking on War Powers Resolution

[ProSense]

Clock Ticking on War Powers Resolution

By CHARLIE SAVAGE

<...>

Under the War Powers Resolution, when a president introduces troops into hostilities without prior authorization from lawmakers, he must withdraw them if 60 days pass and Congress has not since voted to approve the deployment. Pressed on several occasions this week to say whether the administration believes it is bound to comply with that requirement, several top officials demurred.

Attention to the issue swelled following an account in Talking Points Memo about a classified briefing with Congress by Secretary of State Hillary Rodham Clinton on March 30. That report, however, was apparently overstated, according to Rep. Brad Sherman, a California Democrat who questioned Mrs. Clinton at the closed-door meeting.

Citing an unnamed Republican lawmaker who attended, the report said Mrs. Clinton had said the administration “would forge ahead with military action in Libya even if Congress passed a resolution constraining the mission” and that she “plainly admitted the administration would ignore any and all attempts by Congress to shackle President Obama’s power as commander in chief to make military and wartime decisions.”

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But in a phone interview, Mr. Sherman said that he had actually asked whether the administration believed it was bound to obey the 60-day deadline. And Mrs. Clinton gave no definitive response either way, he said.

more

Why would a Republican distort the facts?

[MNBrewer]

1. The same reason a "CircleD"emocrat might.

[ProSense]

2. Hmmm?

Some appear more ready to believe a Republican. Why?

[MNBrewer]

3. Political types lie

Spin, lie, etc.

[Cali_Democrat]

4. "Why would a Republican distort the facts"

:wtf:

Do you really need to ask this question?

[ProSense]

5. Wait,

outrage over a rhetorical question?

In case it ever comes up again: I know Republicans lie. OK?

[Cali_Democrat]

7. You think my reply was outrage?

You're a little sensitive. Relax.

[Vattel]

6. I don't know. Obama has already violated WPA

and the Constitution. Why bother distorting the facts to suggest that he would violate the WPA again?

[ProSense]

8. Actually,

he didn't violate the WPA.

February 23: Remarks by the President on Libya

February 25: Letter from the President Regarding Libya Sanctions

March 1: SENATE RESOLUTION 85--STRONGLY CONDEMNING THE GROSS AND SYSTEMATIC VIOLATIONS OF HUMAN RIGHTS IN LIBYA, INCLUDING VIOLENT ATTACKS ON PROTESTERS DEMANDING DEMOCRATIC REFORMS, AND FOR OTHER PURPOSES (PDF)

<...>

(7) urges the United Nations Security Council to take such further action as may be necessary to protect civilians in Libya from attack, including the possible imposition of a no-fly zone over Libyan territory;

<...>

President Obama acted under the U.N. Charter and fulfilled the War Powers Act requirements: Consulted with Congress, notified Congress within 48 hours and now has 60 days to submit a report.

Members of Congress have oversight and will decide the appropriate course of action in terms of authorization. They can still reject or support the mission.

[Vattel]

10. I know, I know, you think he didn't.

And nothing could possibly change your mind.

[PurityOfEssence]

20. It's incredible, isn't it?

Shown the actual document over and over again, it still doesn't sink in. It is unbelievable on every level.

[PurityOfEssence]

21. Do you have me on ignore? Do you not deign to even review the actual document?

Sec.2(c) The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised ONLY pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.

Section 4 is entitled "REPORTING", and stipulates that (unless it's a Declared War) after the first action, he has 48 hours to inform the Congress in writing of all the particulars. There is no "permission" here, or superseding of Section 2; it's Congress' requirement of explicit information.

Section 5 is entitled "CONGRESSIONAL ACTION", and that's where Congress asserts the timetable to which he must adhere: 60 days of action, upon which time offensive action MUST stop, unless Congress authorizes more or declares war. He even has to request an additional 30 days to get everyone out, if necessary; they're tying him to the apron strings in a big way.

The 60 days is not a "free trial period" or "test drive"; it's the limit given after he has committed forces through a condition stated in Section 2

The UN Participation Act REQUIRES CONGRESSIONAL AUTHORIZATION, and the UN Charter states very clearly in Article 43 that forces made available by a leader "shall be subject to ratification by the signatory states in accordance with their respective constitutional processes. Thus, the UN Charter is not a treaty with a pre-existing obligation in any form whatsoever.

http://www.policyalmanac.org/world/archive/war_powers_resolution.shtml

http://avalon.law.yale.edu/20th_century/decad031.asp

Will everyone who gives a damn about our country please set this poster straight? It is injurious to us all for this to be misrepresented like this. I have repeatedly countered this person's assertions to this effect with specific quotes from the actual documents themselves. This is infuriating.

[ClarkUSA]

9. Stop pushing that false debunked meme. You can't back up a thing you're saying.

[Vattel]

11. It's been backed up on other threads,

but you didn't seem to appreciate the force of the arguments. Are you aware that there is an intelligent and lively debate over the the Constitution's distribution of war powers. John Yoo's view is crazy, but there are a variety of respectable positions. I encourage you to investigate it and the requirements of the WPA.

[ClarkUSA]

12. Wrong. Op-ed style pontificating rants on a discussion forum are not facts.

ProSense gave you facts with links to credible named sources. There's a big difference.

[Vattel]

13. My favorite post of yours

was the one where you claimed that every Constitutional scholar disagrees with me. Apparently you surveyed them all. Of course you missed the Constitutional scholars who believe that Obama has acted unconstitutionally and in violation of the War Powers Act, scholars such as Bruce Ackerman of Yale Law School (http://www.law.yale.edu/news/12992.htm).

Apparently my citing of the text of the WPA is mere pontifcating. The WPA says:

"The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces."

1 and 3 obviously don't apply to Libya. How about 2? Does the President have specific statutory authorization for what he is doing in Libya? No. (As Purity of Essence has explained in many posts, the UN Participation Act doesn't specifically authorize hostilities in Libya.)

Oh wait, I'm just pontificating again instead of giving facts and linking to credible sources.

[ClarkUSA]

14. lol! Took you long enough to find one single lonely voice in the wilderness, eh?

So what? There's always someone. That's it?

Why isn't there a huge outcry of outrage from every constitutional scholar in the nation?

You know why? They all disagree with Ackerman! He's wrong! Participating in a no-fly zone isn't starting a war, as Ackerman claims. Furthermore, Pres. Obama has plenty of time left to get approval from Congress. He has already notified them as per the WPA, as ProSense proved.

Nobody in the MSM thinks Ackerman's right, either. They've done their research and asked around with other constitutional scholars, no doubt. Ackerman must be disappointed. Maybe he can still get on Rupert Murdoch's payroll and be a Faux Newz media whore...

[Vattel]

16. Oh, now it's everyone except Ackerman.

I suppose your imaginary survey of Constitutional scholars verifies this. LOL.

"Pres. Obama has plenty of time left to get approval from Congress"

Read the text I provided. What does it say?

"The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces."

Has Obama introduced United States Armed Forces into hostilities in Libya? Yes. Did he do it pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces. No.

See, it's not that hard to understand.

[ClarkUSA]

17. That's a fact. Your subjective rhetoric pales in the face of the facts ProSense has offered re: WPA

Facts that you and Ackerman keep ignoring which will not go away:
http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=433&topic_id=642765&mesg_id=642807

[Vattel]

28. Those facts don't address my argument.

The Senate resolution cited by Prosense doesn't constitute "specific statutory authorization" for introducing forces into Libya. You can understand that simple point, can't you?

[PurityOfEssence]

26. Incorrect yet again, and here's why:

The War Powers Act DEFINES what it considers war:

SEC. 2. (a) It is the purpose of this joint resolution to fulfill the intent of the framers of the Constitution of the United States and insure that the collective judgement of both the Congress and the President will apply to the introduction of United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicate by the circumstances, and to the continued use of such forces in hostilities or in such situations.

Yes, it would be nice for Obama to go back and get Congress' approval, but this is not what was to have happened. By the very text of Section 2(c), he BROKE THE LAW. ProSense hasn't proven a thing. Yes, Obama has informed them "consistent" with the Act, but that in no way confirms his compliance with the rest of it.

As for your sweeping generalizations, here are some people in the mainstream media who disagree with you.

Here's Robert Spitzer, a renowned Political Scientist writing in Huffington
http://www.huffingtonpost.com/robert-j-spitzer/obama-war-powers-and-yoo_b_841147.html

Here's SFGate and Zoe Lofgren:
http://articles.sfgate.com/2011-03-22/news/29173271_1_president-obama-military-force-war-powers-resolution

The Knoxville Journal
http://www.theknoxvillejournal.com/content/stories/news/Obamas-Hypocrisy-Violation-of-War-Powers-Act.html

Two by Michael Lind in Salon:
http://www.salon.com/news/politics/war_room/2011/03/21/lind_libya_war
http://www.salon.com/news/libya/index.html?story=/politics/war_room/2011/03/21/congress_war_powers_the_president

A scathing little something from the Progressive, although it doesn't address the War Powers Act:
http://www.progressive.org/wx031911.html

Michael Dorf, a Cornell Professor and Constitutional Scholar calls it unconstitutional:
http://www.sify.com/news/us-military-action-in-libya-unconstitutional-law-expert-news-international-ld0oOejfiha.html

Prominent progressive Marc Weisbrot of the Center for Economic Policy and Research, published in the Arizona Sun "Libyan Airstrikes Unconstitutional":
http://azdailysun.com/news/opinion/columnists/article_efe2330a-ed68-595a-a837-10ee9bc6a336.html

[PurityOfEssence]

25. Here, ONCE AGAIN, is how ProSense has it wrong, along with the UN Participation Act

ProSense links to things that are misinterpreted or aren't even what they pretend to be; in another thread, this person labels a link "UN Charter" when it is actually an article about the New Deal and early negotiation about the UN Charter. What's shown in the link "War Powers Act" is this, which is part of Section 8:

(a) Inferences from any law or treaty
Authority to introduce United States Armed Forces into hostilities or into situations wherein involvement in hostilities is clearly indicated by the circumstances shall not be inferred—
(1) from any provision of law (whether or not in effect before November 7, 1973), including any provision contained in any appropriation Act, unless such provision specifically authorizes the introduction of United States Armed Forces into hostilities or into such situations and states that it is intended to constitute specific statutory authorization within the meaning of this chapter; or
(2) from any treaty heretofore or hereafter ratified unless such treaty is implemented by legislation specifically authorizing the introduction of United States Armed Forces into hostilities or into such situations and stating that it is intended to constitute specific statutory authorization within the meaning of this chapter.

The problem is that the UN Charter is NOT such a treaty. It specifically states in Article 43, which is the description of how forces are to be made available for an Article 42 call-up, that any agreements made by a leader "shall be subject to ratification by the signatory states in accordance with their respective constitutional processes."

The UN Participation Act of 1945 governs ALL of our dealings with the UN, and states that Congress must authorize these agreements. I've posted this repeatedly to ProSense, yet still this inapplicable link persists. The link labeled "48 hours" is Obama's letter, wherein he says that he's sending the letter "consistent" with the War Powers Act, which simply says that this is one of the functions he's to perform per the act, but in no way contends that he's acting as stipulated in the act in his illegal choice to go to war in violation of it.

Here's the UN Participation Act, conveniently linked with the UN Charter; it's ironclad: He MUST have Congress' statutory approval by both houses for the specific agreement in order to act. It's in section 6. The wording gets a bit confusing, but it is wiggle-proof: he must have prior authorization. He is in violation of both acts. It's deliberate and conclusive.

Here's the pertinent section, but read carefully:

SEC. 6. The President is authorized to negotiate a special agreement or agreements with the Security Council which shall be subject to the approval of the Congress by appropriate Act or joint resolution providing for the numbers and types of armed forces, their degree of readiness and general location, and the nature of facilities and assistance, including rights of passage, to be made available to the Security Council on its call for the purpose of maintaining international peace and security in accordance with article 43 of said Charter. The President shall not be deemed to require the authorization of the Congress to make available to the Security Council on its call in order to take action under article 42 of said Charter and pursuant to such special agreement or agreements the armed forces, facilities, or assistance provided for therein: Provided, That nothing herein contained shall be construed as an authorization to the President by the Congress to make available to the Security Council for such purpose armed forces, facilities, or assistance in addition to the forces, facilities, and assistance provided for in such special agreement or agreements.

If you don't believe me, here's an article from the American Journal of International Politics:

� Under the UN Charter, in the event of any threat to the peace, breach of the peace, or act of aggression, the UN Security Council may decide in accordance with Article 41 to recommend "measures not involving the use of armed force." If those measures prove inadequate, Article 43 provides that all UN members shall make available to the Security Council‑‑in accordance with special agreements‑‑armed forces and other assistance. These agreements would spell out the numbers and types of forces, their degree of readiness and general location, and the nature of the facilities and assistance to be provided. As noted above, it was anticipated that the member states would ratify these agreements "in accordance with their respective constitutional processes."

� "Constitutional processes" is defined in section 6 of the UN Participation Act of 1945. Without the slightest ambiguity, this statute requires that the agreements "shall be subject to the approval of the Congress by appropriate Act or joint resolution." Statutory language could not be clearer. The President must seek congressional approval in advance. Two qualifications are included in section 6:

��� The President shall not be deemed to require the authorization of the Congress to make available to the Security Council on its call in order to take action under article 42 of said Charter and pursuant to such special agreement or agreements the armed forces, facilities, or assistance provided for therein: Provided, That . . . nothing herein contained shall be construed as an authorization to the President by the Congress to make available to the Security Council for such purpose armed forces, facilities, or assistance in addition to the forces, facilities, and assistance provided for in such special agreement or agreements.

� The first qualification states that, once the President receives the approval of Congress for a special agreement, he does not need its subsequent approval to provide military assistance under Article 42 (pursuant to which the Security Council determines that peaceful means are inadequate and military action is necessary). Congressional approval is needed for the special agreement, not for the subsequent implementation of that agreement. The second qualification clarifies that nothing in the UN Participation Act is to be construed as congressional approval of other agreements entered into by the President.

� Thus, the qualifications do not eliminate the need for congressional approval. Presidents may commit armed forces to the United Nations only after Congress gives its explicit consent. That point is crucial. The League of Nations Covenant foundered precisely on whether congressional approval was needed before using *30 armed force. The framers of the UN Charter knew that history and consciously included protections of congressional prerogatives.

http://avalon.law.yale.edu/20th_century/decad031.asp

http://www.law.berkeley.edu/faculty/yooj/courses/forrel/reserve/fisher.htm

Are we done yet, or are you going to continually characterize my specific citing of original documents as "rants"? This has all been run by both of you exhaustively.

[PurityOfEssence]

22. I can, and I have repeatedly; see my post above.

You are wrong. 60 days is not permission; it is specifically a timetable to which he must adhere AFTER he has committed, and he may only commit in a situation specifically laid out in Section 2.

People, please set this person straight. This is not "opinion", it is FACT.

[slipslidingaway]

15. First paragraph ...

"President Obama’s legal team, having decided he could launch military strikes in Libya last month without congressional authorization, is now weighing a related question: What happens if Congress never votes to approve the operation, but hostilities are still underway in mid-May?"

[Raine1967]

18. Well, maybe congress could get on that instead of attacking

Medicare and Medicaid...

They had 60 days, The clock is ticking.

[PurityOfEssence]

24. They have yet to explain their justification.

It would be interesting to hear the bullshit, because it has to be some version of disputation of the provenance of the War Powers Act.

You'll note that this does not reference the act at all; it's just them saying that they've determined that they may. The War Powers Act is explicit about this:

Section 2(c) The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised ONLY pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.

Don't let any other idiots confuse you that he gets 48 hours and 60 days; those are specific limitations of reporting and congressional control and have nothing to do with permission to act. The ONLY ways a President may introduce forces into hostilities or where they're imminent is by Declaration of War, authorization or if we're attacked. Reading the actual document in order is just resoundingly emphatic: Congress is bringing the President to its heel and calling the shots, ESPECIALLY when it pertains to starting something. The treaty stipulation does NOT cover the UN Charter: it specifically says that member nations have to get special agreements ratified to satisfy their own constitutions.

This is waaaaay serious. The only reason it's not a huge outcry is that the Republicans want to ratfuck the War Powers Act and have a virtual monarchy every bit as much as Barack Obama.

[slipslidingaway]

30. Explanation on DU apperars to be everything and anything ...

that might cover an introduction of armed forces.

UN resolution
Senate Resolution
A small piece of the War Powers resolution.

You are right about the reason for many Republicans not wanting to challenge Obama now, some things rise above party politics.

:(

http://www.fas.org/sgp/crs/natsec/RL32267.pdf
page 5 and 6

"...Congressional concern about Presidential use of armed forces without
congressional authorization intensified after the Korean conflict. During the Vietnam
war, Congress searched for a way to assert authority to decide when the United States
should become involved in a war or the armed forces be utilized in circumstances
that might lead to hostilities. On November 7, 1973, it passed the War Powers
Resolution (P.L. 93-148) over the veto of President Nixon. The main purpose of the
Resolution was to establish procedures for both branches to share in decisions that
might get the United States involved in war. The drafters sought to circumscribe the
President’s authority to use armed forces abroad in hostilities or potential hostilities
without a declaration of war or other congressional authorization, yet provide enough
flexibility to permit him to respond to attack or other emergencies..."

"Purpose and Policy

Section 2 states the Resolution’s purpose and policy, with Section 2(a) citing as
the primary purpose 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, or into situations where imminent involvement in hostilities is clearly
indicated by the circumstances, and to the continued use of such forces in hostilities
or in such situations.”

Section 2(b) points to the Necessary and Proper Clause of the Constitution as
the basis for legislation on the war powers. It provides that “Under Article I, section
8, of the Constitution it is specifically provided that Congress shall have the power
to make all laws necessary and proper for carrying into execution, not only its own
powers but also all other powers vested by the Constitution in the Government of the
United States....”

Section 2(c) states the policy that the powers of the President as Commander in
Chief to introduce U.S. armed forces into situations of hostilities or imminent
hostilities “are exercised only pursuant to —

(1) a declaration of war,
(2) specific statutory authorization, or
(3) a national emergency created by attack upon the United States, its
territories or possessions, or its armed forces.”

[Arkana]

19. Oh, hey--another "unnamed source" gets to make news

and make DUers everywhere flip out.

[PurityOfEssence]

23. This article does not say that the President may act alone if not attacked

This article does not "prove" your contention, because your contention is wrong. I have shown this to you repeatedly with quotes from the actual text, and by simply clicking on the link in the article, anyone can plainly see the same.

You conveniently leave off the first sentence of this article, which includes "President Obama’s legal team, having decided he could launch military strikes in Libya last month without congressional authorization..." Where does it say that this is confirmed by the act itself? It does not; it merely says that his legal team thinks they can do it, and they're not referencing the law in any way, so they don't have to question its language. How tidy. What a slap in the face of Congress and of the law itself. The only reason the Republicans aren't howling is that they HATE the War Powers Act; that's what Republicans are: imperious dicks.

The problem here is cold-blooded deception on our President's part, just like submitting a letter with 6 references to the UN Charter and then saying that he's sending the letter "consistent" with the War Powers Act, trying to deceive the casual reader that he's saying he's complying with the act when he isn't: he's merely performing one of the tasks he's required to by the act after violating the whole thing to have gotten to that point.

Here's more from your article which is also conveniently missing: Many presidents of both parties have objected to Section Two of the resolution, which says that presidents may unilaterally deploy the military into actual or potential hostilities only in a “national emergency” created by an attack on the United States or its forces. Imagine that: you omitted the language that shows that the author is well aware of the specific restrictions on a President. Section 2 is the ONLY section that delineates situations where a President may engage. It is the heart and soul of the Act. It is the specific reason why they went to the trouble to craft, pass and override a veto to make it the undisputed law of the land, as it has been for 37 years. The 48 hours and 60 days are RESTRICTIONS PUT ON HIM after he's initiated contact from either Declaration of War, an authorization or being attacked and are in no way "permission" or anything of the sort.

This article does NOT sustain your position at all, and the curious excising of parts of it that would show otherwise warrant a little 'splaining.

People, please help me out with this person and the others who will NOT listen to the HARD AND FAST REALITY OF THIS LAW. It's not interpretation.

[vaberella]

27. So basically a Republican is lieing about the truth?

I say to make the Obama administration look bad and make Liberal Dems---some of whom are bloggers, look like buffoons and turn away from the administration by painting them in the same light as the lawless Bush. And apparently if DU, DK, or any other liberal blogger is taken into account, one would say they are doing a great job of making liberals look like fools.

[Enrique]

29. the War Powers Resolution is so quaint

as are torture laws and the 4th amendment.