Libya? Lib-no? Lib-maybe?

Lib-WTF?!

Back in mid-March, I wrote a tome about the situation in Libya.  In it, I said the following:

The problem with the current debate regarding Obama’s actions in Libya is that people on the left are talking past each other. Lefties are conflating two debates: (1) a debate regarding whether or not it is proper for the United States to be mandated by treaties (which are the supreme law of the land and not subject to Congressional encroachment) to get involved in such critical humanitarian peacekeeping missions absent a polling of public opinion and absent authorization from Congress, and (2) a debate about the legality of what Obama is doing. The first debate is not a debate about Obama’s current actions in Libya; it’s a policy debate. It’s a debate about international law, and the United States’ place as a member of the international community and whether or not the UN is totally useless. As to the second debate, it seems to me that Obama is following the rules, at least as far as I can tell. If you want to complain about the rules, that’s cool. But that’s debate number 1. As to debate number 2, get off Obama’s back already. MIRITE?

Whelp, here we are three months later, still not talking about the United Nations Charter and still not talking about the role the United Nations should play in American foreign policy decisionmaking.

We are still arguing about whether or not Libya is JUST LIKE IRAQ!!!11one.  (It’s not. Not even a little — the 2003 land-invasion of Iraq was not sanctioned by the Security Council.)

We are still listening to the musings — This War Is Illegal! — proffered by all sorts of constitutional law experts like Michael Moore, Dennis Kucinich, and Eugene Robinson.

And finally Glenn Greenwald, of course, is still claiming that This War Is Illegal!, having not at all addressed any of the issues regarding the interplay between Articles 42 and 43 which I raised in my post in March in response to his out-of-hand dismissal of those arguments.1 (Indeed, as could have been expected, Greenwald made and then half-assedly backed away from an argument that the US along with Britain and France launched this war for oil.)

So, I figured I’d wade in (again) only to be ignored (again, I’m sure).

In the comment section of John Cole’s latest post about Libya, commenter MomSense dropped this link — “War Powers and Executive Authority in the Libya Conflict” written by Jordan Paust.  It is the perfect response to the Greenwalds and Kuciniches, and it encapsulates the “other side” of the argument.

Any fair reading of Praust’s article in conjunction with Greenwald’s posts reveals that the Libya Affair is not an easy question with easy answers, and that the answer to the Libya Affair necessarily involves disagreement about the relevant treaties and the manner in which those treaties dovetail with constitutional and statutory law (as Paust suggests in the second emphasized section below):

President Obama has decided that the US will continue to participate with other NATO members in military actions authorized by the UN Security Council in Resolution 1973 (March 17, 2011), which “[a]uthorizes Member States … to take all necessary measures … to protect civilians and civilian populated areas under threat of attack in” Libya. The Security Council has authority to authorize such measures under Articles 39 and 42 of the UN Charter in response to “any threat to the peace, breach of the peace, or act of aggression.”
In this instance, the Council has decided that attacks on and continued threats to civilians and civilian populated areas in Libya “continue to constitute a threat to international peace and security” and the Council has decided to authorize all such protective measures, including the creation of a no-fly zone. The Security Council’s decision to authorize force is therefore binding on members under Articles 25 and 48 of the Charter, but because it merely authorizes force and does not require members to engage in such enforcement measures, each member has some discretion whether to join.

Although the US use of force in compliance with the Security Council resolution is permissible under international law, is President Obama’s continued use of force also permissible under our Constitution without special congressional approval? In my view, the answer is clearly yes.

Some have argued that US participation after 90 days violates the War Powers Resolution, but even a quick read of the congressional resolution demonstrates that this is not correct. First, one should note that Section 2(c) of the Resolution (setting forth its “Purpose and Policy”) merely speaks to the powers of the President as Commander-in-Chief and does not address the constitutionally-based powers of the President as the Executive under Article II, Section 1, of the Constitution. Additionally, it does not address the constitutionally-based duty and concomitant authority of the President under Article II, Section 3, to “take Care that the Laws be faithfully executed.” As the Executive with power and authority to execute laws, and especially with the unavoidable mandate that the President “shall take Care that the Laws be faithfully executed,” and given the fact that treaties of the United States (such as the UN Charter) are supreme federal laws, it is evident that the President has constitutionally-based authority to faithfully execute US competencies under the Charter outside of the President’s independent authority as Commander-in-Chief.

In any event, the War Powers Resolution contains its own set of limitations. One of these is found in Section 8(b), which allows members of the armed forces of the United States “to participate jointly with members of the armed forces of one or more foreign countries in the headquarters operations of high-level military commands which were established” previously “and pursuant to the United Nations Charter or any treaty ratified by the United States prior to” the War Powers Resolution. NATO is a relevant treaty-based organization, although whether its “high-level military” command was previously established for purposes of the statute or, for interpretive purposes, is merely established for each specific operation may lead to disagreement.

Another set of limitations is contained in Section 8(d)(1), which assures in pertinent part that “[n]othing in this joint resolution is intended to alter the constitutional authority of … the President, or the provisions of existing treaties.” As mentioned, the President’s authority involves the Executive power as well as the concomitant duty and authority faithfully to execute the laws, such as treaties of the United States. Execute is nearly the very name of Executive and, in any event, execute is encompassed within its meaning. The War Powers Resolution was not meant to alter these forms of constitutional authority and, as constitutionally-based presidential power, a mere federal statute or joint resolution could not do so.

Moreover, the War Powers Resolution is expressly intended to not alter the provisions of existing treaties and, therefore, it was not intended to alter provisions of the UN Charter or the North Atlantic Treaty establishing NATO. With respect to treaty law, in this instance the President has chosen on behalf of the United States to accept and execute the authorization contained in the UN Security Council resolution and engage in enforcement measures with respect to Libya. In so doing, the President has faithfully executed provisions of the UN Charter, including an outcome of that treaty’s continued functioning (e.g., the Security Council resolution and its legal authorization which are also last in time vis-a-vis the War Powers Resolution, constituting prevailing law). Faithfully executing the treaty is part of the President’s constitutionally unavoidable duty expressed in mandatory “shall” language and, more generally, this duty involving compliance with and faithful execution of a treaty of the United States happened to be of fundamental concern to the Founders and Framers.

(Emphasis added.)

(click here for original and to read Mr. Paust’s academic qualifications)

The above is the debate I want to have.  The argument about hostilities vs. not-hostilities seems silly, and I’m not sure where Obama is going with that one, frankly.

I recognize that — as my friend Mild-Mannered White Guy friend pointed out to me over the weekend — I am making an argument that Obama doesn’t seem to be making.   I’m not sure “what’s going on in Libya doesn’t count as ‘hostilities’” is the best argument for the Obama administration to hang its hat on. It seems part and parcel of the spaghetti approach – throwing every argument agains the wall to see what sticks – but where’s the rest of the spaghetti?  That’s what I’m wondering.

Why isn’t the Obama administation discussing the role of the UN?

I don’t know.

I’m not buying the “not hostilities” argument, though, and the only reason I can fathom that the Administration isn’t making an argument about the UN is because it doesn’t want to draw the attention of the Westphalian Hive Mind School of Thought (as represented by the oddly-mustachioed John Bolton) that the UN should just be another arm of the US government, and that the US should not be obliged to step in for humanitarian purposes when warranted. (Of course we can still step in when we want to because why not, that’s why.)

What do I mean by that?  Well, watch this video:

This is the Bolton state of mind:

There is no United Nations. There is an international community that occasionally can be led by the only real power left in the world — and that’s the United States — when it suits our interests, and when we can get others to go along.

 

This kind of mindless creation of the United Nations as something different from what it’s in the United States’ interest to do isn’t going to sell here or anywhere else.

In short, maybe the Obama administration does not want to have a fight about multilateralism. Not now. Not with this Congress.  Like I said, I don’t know.

It’s clear, however, that Obama is taking political heat from both sides on this Libya business and that he is going forward anyway.  I, unlike Greenwald, am not convinced this is a power grab.  Could it be?  Sure.  Am I wrong?  Maybe.  I’ll have no problem admitting so if it turns out that I am wrong.

I do think that whatever his/our Ultimate Motive for this Libya SortaMaybeWar, Obama recognizes that the last thing the GOP wants to do is curtail the executive’s ability to make war, so he intends to continue to work with France and Britain in carrying out this war-like thing going on in Libya while staring down Congess and forcing it to blink – and by blink, I mean vote to defund the operation and in so doing,  set forth arguments that will inure to the detriment of the next Republican president.

I also think that both sides of this debate (in Blogistan and the media) are going to continue to talk past each other, using the same exact news reports to bolster their claims.  On the one hand, folks will point to reports from Libyan rebels via Western journalists that Qadaffi loyalists are using rape as a weapon of war as evidence that we are doing the right thing by heeding Libyans’ cry for help (It’s hard to deny that the folks in Benghazi were crying for help).   On the other hand, folks will point to those same reports and call them propaganda, akin to the “babies in incubators” hoax.  And never the twain shall meet.

So what’s really happening?  What’s true?  How much of what is true now will be true in six months?  These are questions one has to ask given this country’s penchant for bombing shit.

In the end, I don’t know.  I don’t know much more than I knew in March.

I know one thing: there is no easy answer to the Libya Question; it’s an excruciatingly close call, and anyone screaming about ILLEGAL WAR! and WAR FOR OIL! all the while ignoring the complex questions of international law involved — especially when that person is a lawyer — is selling something.

1 Yes, I’m sure he’s verrah busy and cannot concern himself with the questions of someone as crazy and offensive as I am, but I ain’t the only one askin’ here.

(H/T MomSense!)

[via Univ. of Pitt. School of Law’s Jurist Legal News & Research]

[cross-posted]






201 replies
  1. 1
    Cromagnon says:

    Like I said elsewhere, the DFH’s and the wingnuts are exactly the same in that they both live in a fantasy world that exists only in their own minds… To them everything is black and white in a world of grey… My advice is to just not pay attention to any of them because none of ’em know jack shit about anything

  2. 2
    Mattminus says:

    The title of this post is pure gold.

  3. 3

    In defense of Dennis Kucinich:

    He is a dyed-in-the-wool pacifist and probably thinks that all wars are immoral. He has been very consistent about that.

    Whether this current set of hostilities is legal is a different issue. If Dennis is saying that it’s illegal, he might be mistaken.

  4. 4

    And I still am not sure why we should be siding with the Republicans on this issue. Shouldn’t we try to think it out for ourselves first?

    John? Are you listening?

    ETA to add:
    ABL, you’re a lawyer. Kindly explain the war powers act for us. Please?

  5. 5
    Jay B. says:

    So, by arguing a case the President isn’t making, while actually ignoring the one he is, specifically one that disregards the War Powers Act, you sure are showing a determined connection to legal realism! And those fucking hippies, like Yale Professor Bruce Ackerman, who state that it’s a very dangerous precedent and of dubious legality aside are simply unserious “black and white” Obama haters for whom no attention must be paid because they know jack shit about anything.

  6. 6
    Whiskey Screams from a Guy With No Short-Term Memory says:

    In before all the predictable ABL bashing: good work, nice post.

  7. 7
    Mike Goetz says:

    If Congress does not want to be treated like a potted plant, let them not act like a potted plant. If they want to end this and cut off funding, let them do that. If they want to keep it going and approve it, they can.

    But no, just like everybody else in this godforsaken country, all they want to do is talk big and scream at Obama for not doing his job correctly.

  8. 8
    d. john says:

    @1 Shorter cromagnon:
    I hate black and white thinking.
    But overgeneralizing people is okay, as long as I can pretend to be above it all.

    Shorter shorter:
    Duality of thought sucks, except when I do it.

  9. 9
    BO_Bill says:

    I have a teabagger friend who enjoys a turbulent relationship with a female who, to the rest of the world, appears sane. Their current status is talking, but no intimacy. This female had purchased for him some cologne and he used probably 70% of the bottle, and now she went by his place and stole it. We conclude that this action was to prevent him from using it to attract other females.

    The Nature of female-female jealousy is very powerful. This jealousy becomes much greater when focused upon women possessing higher sexual capital. When females are placed in positions of government, these feelings of jealousy can manifest themselves in Global Wars. Hillary Clinton and Samantha Powers made the decision to go to war in Libya and…

    Here is the reason.

    Muammar is not ashamed of his masculinity, and his bodyguards sure seem to delight in their femininity. These happy and attractive women, you must understand, are heresy in the eyes of Yale-educated women. American-educated women are willing to kill to defend the religion that gives them sexual solace. Right now these ladies have the United States Marine Corps preparing for invasion. They are dangerous.

  10. 10
    Yevgraf says:

    Troops in the Field! Commander in Chief! Fer us or agin’ us!

    I love how the Brazilian Drama Queen and his fellow failures (Dennis the Menace and Code Pink come to mind) are so quick to allow the GOP to run away from all of that authority fellating rhetoric AND to make common cause with those who had no problem with stifling all opposition to their aggressive wars all while complaining mightily about a humanitarian intervention.

  11. 11

    We are still listening to the musings—This War Is Illegal!— proffered by all sorts of constitutional law experts like Michael Moore, Dennis Kucinich, and Eugene Robinson

    And Ron Paul. Don’t forget Ron Paul!

  12. 12
    burnspbesq says:

    My thinking on this question is continuing to evolve. Jack Goldsmith’s posts at lawfare.com raise some questions for which I’m not sure the administration has great answers. That said, I continue to be a long way from convinced that the WPA is constitutional.

  13. 13
    stuckinred says:

    It don’t mean nothin.

  14. 14
    The Dangerman says:

    There’s a really good reason not to get the consent of Congress per the War Powers Act; the House wouldn’t consent on it. Not because it’s the right thing to do, but because the House wouldn’t approve of ANYTHING Obama proposes. If Obama had gone to the House with overwhelming evidence of OBL’s location and had asked permission to end that Dude’s Days, the House would have declined.

  15. 15
    d. john says:

    Jay B. @5,

    Thank you for the link. Your posts are nicely evenhanded, reasonable and spittle free. It’s tough act to follow, but if I were a better person on teh tubez I’d try to follow your example. Sadly, shadenfruede seduces me the same way tax-cuts and shiny objects seduce the TP wackos. What;s the secret to maintaining a level head when all the spittle
    flies?

    I have the feeling that even if we disagreed I could respect your position. But you and I agree, again. I almost wish we didn’t, it’d be fun to debate with you.

    Thanks for making B J a better place. From what I’ve seen, unlike myself and the majority here, You are a classy mofo.

    Just sayin thanks.

  16. 16
    Corey says:

    Praust’s piece is maybe a good piece of lawyering but particularly awful political analysis. The gist is that Obama has his hands tied by the obligations of the NATO treaty, and that he couldn’t cease hostilities after the 90-day mark even if he wanted to.

    Needless to say I think this is kind of a silly interpretation of things; the president has undertaken actions of questionable legality at best on several occasions.

    Further, acting within the provisions of the NATO treaty doesn’t mean Congress can’t approve the action. It surely WOULD be approved if the president asked for approval; defense contractors and Village conventional wisdom, both strongly pro-Libyan intervention, own all those guys.

    Clearly, the President’s decision not to seek approval is a political one – he doesn’t want the concessions the GOP would ask for in return for Congressional approval – not a principled legal one taking into account his obligations under the NATO treaty.

  17. 17
    Trurl says:

    I, unlike Greenwald, am not convinced this is a power grab. Could it be? Sure. Am I wrong? Maybe. I’ll have no problem admitting so if it turns out that I am wrong.

    You, unlike Greenwald, consider Obama’s political fortunes more important than the rule of law. Bush’s 22% felt just the same way about their man. You are well sorted in their company.

    Unfortunately for your whitewashing effort, however complicated international law may be, it is perfectly irrelevant. Reid v. Covert says the Constitution supersedes international treaties. No UN resolution – current or future – can exempt Obama from the requirement to obtain Congressional approval for his own personal war. By not obtaining it, he has violated the War Powers Act. (Which is, of course, an impeachable offense.)

    That is not my opinion. That is the opinion of his own OLC Chief, his own Attorney General, and his own Department of Defense General Counsel – speaking in unanimous agreement.

    You say you’ll be willing to admit you were wrong if this is shown to be a power grab? Pray tell us what evidence could possibly force you to admit to such a heresy. Hidden camera video of your man literally wiping his ass with a copy of the Constitution from the National Archives?

  18. 18
    Poopyman says:

    @ Crackhead:

    You high?

  19. 19
    Brachiator says:

    Whelp, here we are three months later, still not talking about the United Nations Charter and still not talking about the role the United Nations should play in American foreign policy decisionmaking.

    International law is a polite fiction. The United Nations is largely America’s bitch, and does what it is told.

    a debate regarding whether or not it is proper for the United States to be mandated by treaties (which are the supreme law of the land and not subject to Congressional encroachment)

    I am not sure what the debate is here, other than intent of the founders, blah, blah, blah, with respect to Article 6 of The Constitution.

    This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.

    And even here, the United States (and any other country which can do so with impunity) ignores any treaty which it perceives to go against national interests.

    @Jay B:

    And those fucking hippies, like Yale Professor Bruce Ackerman, who state that it’s a very dangerous precedent and of dubious legality aside are simply unserious “black and white” Obama haters for whom no attention must be paid because they know jack shit about anything.

    No, but they are unintentionally funny. For example:

    This is a Beltway detail of major significance. Unlike the head of the Office of Legal Counsel, the White House counsel is not confirmed by the Senate — which means that the president can appoint whomever he likes…. But others have turned to personal friends to fill the office. In such cases, it is especially difficult for the White House counsel to say no to a top presidential priority on the grounds that the law prohibits it.

    Nobody much cares what the Beltway thinks about anything, except other Villagers. And although the Senate may have to confirm some presidential appointments, the president can nominate whomever he (or she) wants, and can fire whomever he or she wants. Professor Ackerman is ignorant of both history and reality.

    I think the Libya action is folly. The Congress can oppose it if it wishes. They can stop it altogether if they are brave enough to do so. But they and the pundits need to bring better arguments, especially something much stronger than the self-righteous hippie stance or pearl clutching phony pacifism.

  20. 20
    acallidryas says:

    I am not a lawyer, so I can not speak to the legal questions. But I am concerned about the number of places that the United States is at war with, and I’m concerned about the number of places we’re at not-war and not-hostilities with (Yemen, Libya, Pakistan.) Regardless of who is President, I don’t enjoy this current situation. And I really don’t like the idea that the executive, whoever it is at the time troops are being committed, will commit our troops and our extensive monetary resources to bombing or helping to bomb people without needing a conversation with the nation, and approval from the American people, likely in the form of Congress. If it’s illegal, then it needs to stop. If it’s legal, then perhaps we need to have a discussion about that legality. But I don’t think anyone on this blog would argue that because something is legal that makes it a-okay. There are larger conversations to have.

    And this?

    On the one hand, folks will point to reports from Libyan rebels via Western journalists that Qadaffi loyalists are using rape as a weapon of war as evidence that we are doing the right thing by heeding Libyans’ cry for help (It’s hard to deny that the folks in Benghazi were crying for help). On the other hand, folks will point to those same reports and call them propaganda, akin to the “babies in incubators” hoax. And never the twain shall meet.

    is a ridiculous strawman. I suppose it’s possible that someone has argued that, hey, Qadaffi’s not that bad! But most people against the current Libya campaign, myself included, don’t question that Qadaffi is a horrible person and that there are horrible things going on, just as I never questioned that Saddam was a Very Bad Man. Instead, I question whether that alone means we should be involved there.

  21. 21
    Pat says:

    How is this even a close call? WTF are we doing in Libya, protecting civilians? This is entirely a war of choice and it’s not even helping the people we profess to be protecting. Quit fronting for this sham!

  22. 22
    Trurl says:

    If Congress does not want to be treated like a potted plant, let them not act like a potted plant.

    2008: Change You Can Believe In

    2012: Stop Me If You Can

  23. 23
    eemom says:

    @burns

    That said, I continue to be a long way from convinced that the WPA is constitutional.

    Unconstitutional because it delegates to Congress powers the Constitution reserves to the President?

  24. 24
    Jay B. says:

    d. john,

    Classy? Spittle-free? I’m almost certain you have me confused with someone else. But I appreciate it, nonetheless. Sometimes, I don’t really know what people want here — Obama is now asserting Executive power in a dangerous manner, other times, the same people here claim that he is helpless because he believes so goddamn much in the separation of powers, he isn’t willing to assert more aggressive Executive power (and what are you, some kind of fascist for wanting so?). And, yes, Congress is useless.

    And no, we’re not an item or the same person [/for the inevitable sockpuppet accusation].

  25. 25
    ABL says:

    @Trurl – I appreciate the citation to Reid v. Covert and I will read it and research it.

    The rest of your comment is a tidy bunch of bullshit.

    But since you ask, video of “my man” literally wiping his ass with the Constitution certainly wouldn’t make me any less of an O-bot because it is Obama above all else. Sig heil. That is, after all, the answer you were looking for, yeah?

    /eyeroll

  26. 26
    d. john says:

    @24,

    Maybe it’s because I’ve only just really been paying attention to you lately. heh. lol.

    “Obama is now asserting Executive power in a dangerous manner”

    That’s what I believe. right there.

    I’m pretty consistent about it…why? because I voted for the man thinking he’d undo some of the executive power grab that happened under Bush, which was in fact, probably my principal reason for supporting him rather than Clinton.

  27. 27
    Hunter Gathers says:

    I have spent the past few weeks thinking about this whole Libya thing and have decided that I don’t give a fuck. The real question is: does that make me Hitler, an O-bot, a Firebagger or a sock puppet? Inquiring minds want to know. So I can keep not giving a fuck one way or another.

  28. 28
    stuckinred says:

    Pat

    How the fuck do you know?

  29. 29
    d. john says:

    @27, LOL I don’t know

    not sure – I suspect we will see in a few minutes, when u start getting flamed for your post…

  30. 30
    stuckinred says:

    Hunter Gathers

    Like I said, it don’t mean nuthin.

  31. 31
    daveNYC says:

    If Congress does not want to be treated like a potted plant, let them not act like a potted plant. If they want to end this and cut off funding, let them do that. If they want to keep it going and approve it, they can.

    Oh please. Ignoring whether our action in Libya is good/bad/legal/illeagal, there is no way that Congress will ever cut off funding to any military action, ever. The Democrats couldn’t do it with Iraq, and the Republicans won’t do so with Libya. The sad fact is, cutting the military is about as doable as raising taxes.

  32. 32
    Jay B. says:

    @ Brachiator

    Nobody much cares what the Beltway thinks about anything, except other Villagers. And although the Senate may have to confirm some presidential appointments, the president can nominate whomever he (or she) wants, and can fire whomever he or she wants. Professor Ackerman is ignorant of both history and reality.

    Who is ignorant of what now? Ackerman’s point isn’t Village mores, it’s that whereas the Senate plays a role in confirming some of Obama’s other legal appointees, in theory at least, because of their suitability for the job, the White House counsel is a lap dog whose job it is to find the legal rationale for whatever the President does.

    By misreading him, or willfully ignoring what he’s saying, you are mocking something that only exists in your head. And of course the President can nominate whoever he wants, we’ve seen how smoothly that’s gone. And as far as firing whoever he wants, well, I seem to remember that was in question not too long ago because the DoJ wasn’t prosecuting enough Democrats.

    So you were saying things about ignorance of history and reality?

  33. 33
    Allan says:

    @Dangerman:

    If Obama had gone to the House with overwhelming evidence of OBL’s location and had asked permission to end that Dude’s Days, the House would have declined would have leaked this information to Pakistani intelligence in time for them to tip off OBL.

    FIFY.

  34. 34
    Swishalicious says:

    @Trurl:

    You said “Reid v. Covert says the Constitution supersedes international treaties. No UN resolution – current or future – can exempt Obama from the requirement to obtain Congressional approval for his own personal war.”

    We actually agree on the substance here, but the point needs to be made that the requirement to obtain approval comes from federal statute, not the constitution. Federal statute controls when it is in direct conflict with a treaty and has more recently been passed. I’m sure it’s a novel case, but I’d think that would apply here: WPA controls over UN treaty, being more recent and in conflict. Intra-UN resolutions do not have the force of federal law, and so I think it would be wrong to say that the UN resolutions authorizing Libya action are the most recent effective measures, in terms of time.

    @ABL:

    In the same vein, your self-quote at the stop appears to be incorrect – treaties are not superior to federal law, they are equivalent and, applying rules for the conflict of laws, the later in time controls. Of course, both are trumped by the Constitution.

  35. 35
    Trurl says:

    The rest of your comment is a tidy bunch of bullshit.

    Not really. Obama actually is in violation of the War Powers Act. And that actually is an impeachable offense. If it were President McCain under discussion, you wouldn’t suffer the slightest confusion over it.

    Unlike your current bafflement over what brilliant gambit the 11-dimensional chessmaster is playing now! Why does he risk this oh-so-misleading appearance of an executive power grab? Towards what noble end is he enduring the wrath of his own party – members of which are now suing him in federal court?

  36. 36
    JR says:

    I’m an unemployed guy who just graduated law school and hasn’t yet passed the bar, so I’m not selling anything. But I did write three papers on the subject of Presidential/Congressional war powers balancing. And I think you’ve completely misstated the constitutional objection here. BOTH parties, the President and Congress, might be at fault here.

    Looking at the Constitution itself, there’s a clearly discernible principle that only two parties may take the US to war: a) Congress, or b) the enemy. There’s no room for executive warmaking.

    Accepting for the sake of argument that there’s statutory support for the President to act without specific authority from Congress, that statute might itself be unconstitutional. Congress can’t make a law saying, for example, that war is declared if a pigeon in DC shits on an embassy’s flag. It has to make that decision itself, through normal channels. The idea is that we cannot be dragged into a war save through deliberate attack from outside forces or a deliberate decision to take the country to war by Congress. Neither of those is the case here.

    I’m in an unenviable position: I support the President, I’m planning to vote for his re-election, and I agree with the decision to intervene in Libya. I also think the way he went about intervening was unconstitutional, and, since the War Powers Resolution’s grace period has now expired, unlawful. Right now, I wouldn’t oppose a congressional censure (much like the House gave Polk over the Mexican War, for that President’s decision to deliberately misconstrue a statute in order to send a belligerent force to threaten a foreign state).

  37. 37
    burnspbesq says:

    @eemom:

    “Unconstitutional because it delegates to Congress powers the Constitution reserves to the President?”

    That’s one way to look at it.

    Congress’ power to declare war has never (and I do mean never) been seen as completely prohibiting the President from committing U.S. forces to combat without seeking prior Congressional approval. To cite only one example, Jefferson sent the Navy and Marines into action against the Barbary Pirates without seeking a declaration of war.

    The Constitution gives Congress two ways to rein in a President who has committed U.S. forces to an action of which Congress does not approve: refuse to appropriate funds, or impeach his ass.

    The WPA, which on its face allows Congress to restrain Presidential action by a concurrent resolution not subject to Presidential veto, is every bit as inimical to separation of powers and checks and balances as the Presidential line-item veto.

  38. 38
    dmbeaster says:

    The legal argument here – that the legality of the Libyan war effort can be determined by international treaties, is unsound. (Reid v. Covert, referenced above, seems determinative, though not a war powers case). The War Powers Clause trumps any treaty obligation to go to war, and the Constitution must be followed for the US to legally declare war against another country. If the US bound itself by lawful treaty to go to war on behalf of allies in certain circumstances which then occurred, it still would take an Act of Congress declaring war for that war to be legal under the US Constitution. A treaty cannot delegate the power to declare war to a process other than that required by the Constitution.

    I personally think two things here: 1) the arguments over legality, while important, are still primarily political arguments since this is not an area in which the law works with anything other than a broad brush; and 2) the Libyan conflict is unwise unless fought decisively with troops on the ground to end it now, and compel regime change on behalf of the stronger factions we and our allies want to see take over. This half-assed aerial crap is stupid. If you are going to intervene, do it right.

    For now, the arguments about legality are serving as proxies for opposition to the conflict or devices to embarrass Obama (depending on the actor and his motives). If Congress is serious, its primary weapon is to defund a war. It has been done – Reagan had that little problem with trying to support the Contras despite the Boland Amendment.

  39. 39
    PeakVT says:

    Amendment XXVIII. Section 1. The Congress shall have the power to declare war, and to define all other situations in which the President may order the Army and the Navy to use force. Section 2. The Congress shall have the power to order, by a [standard of your choice here] vote of each chamber, the cessation of any hostilities the President may have commanded.

  40. 40
    d. john says:

    @ABL – 25

    “a tidy bunch of bullshit”

    you spin your phrases better than most here.

    I disagree with your position on this war, I think.

    But you are fun to read, and I love it when you rant.

    Glenn Greenwald is a jackass. I’ll have to take your word that he thinks the war is illegal because I don’t read him anymore.

    I thought it was illegal initially, and I still think it’s wrong – but I’ll stop short of saying it’s illegal now.

    I just wish that Obama would have either taken the advice of OLC, or better yet, congress would have stepped in and made him make his case for war.

    I just think that the fact that he didn’t makes it that much easier for future CinC’s to go to war based on the precedent of ignoring the WPA, or the OLC when it’s expedient to do so. And the thing is, he could have made that choice. Instead he acted alone (more or less) and got us involved in another war.

    My problem isn’t with the Libyan occupation as such. I hate war, but hate crimes against humanity too. So… it’s a tough call on the merits.

    My problem is that Obama didn’t even really bother to act in tandem with outside agency. (He paid lipservice but appears to have dismissed them when they didn’t support the outcome he wanted) .Our process of making a case for war *should* be a difficult and deliberative one.

    That’s my problem. He’s not the first president to do so, but I voted for him thinking he’d roll back some of the “enhanced” executive power that we got under Bush. As far as I can tell, he seems to be basically continuing it.

  41. 41
    Matthew says:

    enjoy your ridiculously destructive empire, assholes. keep arguing over which of your seven wars is justified. your entire country is dying slowly, poor people are being forced to accept entitlement cuts, and you’re busy justifying another expenditure in establishing america’s warmongering empire. congratulations, jackasses. the democrat party is an official accomplice to neo-con genocide. yay, democracy.

  42. 42
    burnspbesq says:

    @Swashalicious:

    “Federal statute controls when it is in direct conflict with a treaty and has more recently been passed. ”

    That’s an overly simplistic view of the law on treaty override. “Later in time” is not a shibboleth. It’s a shortcut to ascertaining Congressional intent. I addressed this question at some length over last weekend, and concluded that it is decidedly unclear whether Congress intended the WPA to override the UN Charter. You may ultimately be able to make that case, but you’re not there yet.

  43. 43
    Comrade Scrutinizer says:

    Not sure that Reid v Covert would apply in this case anyway. Reid v Covert settled a case in which a civilian military dependent killed her husband in England and was tried by court-martial under the UCMJ, based on an agreement between the US and the UK that crimes committed in the UK by military personnel and their dependents would be tried by military courts. The SC held that a treaty agreement could not strip civilians of rights granted under the Bill of Rights or the Constitution.

    Seems to me that the issue of Libya and NATO involvement has nothing to do with Reid v Covert. The NATO treaty is valid and has been ratified, and doesn’t seem to violate the Constitution.

    I’m more interested in the constitutionality of the WPA. Seems like no one wants to make a test case of that issue.

  44. 44
    BTD says:

    I do not find your legal argument at all convincing.

    I suppose others might.

    What I do find interesting is that the Obama Administration has not even forwarded your argument.

    Does that give you any pause about the strength of your argument?

  45. 45
    Swishalicious says:

    @burnspbesq

    If you’d be kind enough to link me what you wrote, I’d be interested to read it. I think you make a fair point that the crux of the inquiry is congressional intent, but it seems to me that, especially in this case, the “later in time” inquiry would be pretty conclusive in that I don’t think it passes the straight face test to suggest that the Congress, when passing a law that attempts to rein in the power of the president to unilaterally enter into armed conflict, thought that UN approval would be a reasonable substitute for congressional consent.

    Yes, that was the mother of all run-on sentences.

  46. 46
    EZSmirkzz says:

    Good post.

  47. 47
    d. john says:

    @Matthew,

    joy. another sanctimonious European or Canadian or Australian with a BDS axe to grind.

    You don’t have a dog in this fight, and since you are not American you don’t have the first fucking clue about Day to Day politics here – You make a bunch of sweeping generalizations about us and our country which is the height of Hubris. That hubris you so readily accuse america of.

    Sanctimonious projection much?

    You don’t even have a dog in this fight, and you are using the internet we invented to criticize us. Just sayin – you wouldn’t even be able to launch into your ignorant tirade if it weren’t for American innovation.

    Now fuck off, you spastic, rabid little troll.

    Next

  48. 48

    Spot on ABL. There is no formal process required by the constitution for congress to exercise it’s authority to authorize the US to engage it armed conflict. They can use that power any time they please, in any form they please.

    Right now, it is minimally being conducted through a ratified treaty, which the congress can bigfoot anytime, to stop it By defunding it. Or a sense of the congress that would politically force Obama to ask for permission to continue at the least drone bombing in Libya

    But it is laughable, to stretch the WPA or the constitutional authority of congress to declare war, into anything not directly causing violence on the state of Libya. A reading like that would require a declaration of war for any country fighting anyone with weaponry or any form of US participation, intellectual or otherwise.

  49. 49
    burnspbesq says:

    @Comrade Scrutinizer:

    “I’m more interested in the constitutionality of the WPA. Seems like no one wants to make a test case of that issue.”

    It’s a tough call. I think it’s unconstitutional, but there is an OLC opinion from the Carter administration that reaches the opposite conclusion. If you read all the stuff on Balkinization, Opinio Juris, and lawfare, you’ll see that both sides have decent arguments.

  50. 50
    OzoneR says:

    If Gaddafhi himself and five of his henchmen landed in New York City three months ago, personally took five New York schoolchildren, raped them, then shot them dead in cold blood, Greenwald would still say a war against his government is illegal.

  51. 51
    Mandramas says:

    I don’t understand why the question is about the legality of the war, when it should be about the morality.

  52. 52
    d. john says:

    BTD, @44

    Forgive me for asking, but who were you responding to?

  53. 53
    Trurl says:

    I don’t understand why the question is about the legality of the war…

    That’s fine. Just admit that when you screamed about the rule of law during the Bush administration, you didn’t actually give a shit about that. It was just a convenient lie to advance your party’s political interests.

    Duly noted.

  54. 54
    OzoneR says:

    I’m more interested in the constitutionality of the WPA. Seems like no one wants to make a test case of that issue.

    Oh Thank You!!!

  55. 55
    burnspbesq says:

    @Swashalicious:

    Can’t find the previous comment right now. The gist of it was (1) the key issue in treaty override is Congressional intent, (2) intent to override must be clearly expressed, and (3)inconsistencies in the WPA (particularly the inconsistency between 1547(d) and 1541(b)) don’t seem to me to support a conclusion that Congress has clearly expressed an intent to override.

    YMMV.

  56. 56
    boss bitch says:

    I don’t understand why the question is about the legality of the war, when it should be about the morality.

    because its an argument Libya opponents would lose. big.

  57. 57
    burnspbesq says:

    @OzoneR:

    “If Gaddafhi himself and five of his henchmen landed in New York City three months ago, personally took five New York schoolchildren, raped them, then shot them dead in cold blood, Greenwald would still say a war against his government is illegal.”

    On those facts, I would agree with him. Those are crimes, not acts of war. You could prosecute his ass, but you couldn’t bomb it.

  58. 58

    I don’t understand why the question is about the legality of the war, when it should be about the morality.

    Precisely, because it is a proxy to attack Obama personally, or the head of the executive branch for those who think presidents should be figure heads in a libertarian Utopia.

    It also seems to me, polite debates about the legality of this war or that, is sort of like a boat stuck in a hurricane spending their precious time debating the virtues of bigger boats.

    Warfare is the ultimate in illegality, expressly conducted to violate the laws of nature and man in a most lawless way, depriving them of life and liberty. You can make some rules on who the killing applies to, and in some cases, with what weapons, and treatment of prisoners. But to apply stringent notions of laws of man on commencing what we call war, is a bit silly imo.

    We should be discussing this situation as to it’s morality, as you say, and for it’s necessity. There are valid arguments against it on those levels. But not when our congress continues to lend it’s tacit approval by not doing its job. I think the UN based argument is solid, at least to the limited degree we are involved, though the drone bombings are certainly up for debate within that context.

    But the Obama centered vapid navel gazing is either village herd mentality, or simply a way to attack Obama personally, or at least his authority as president. imo

  59. 59
    Mandramas says:

    @OzoneR: One more american citizen that confuses war with revenge and acts from a person with acts from a nation.

  60. 60
    JG says:

    #50 – That is so absurd but also completely typical of the trajectory of this topic (Greenwald) whenever it comes up. Instead of discussing the position he’s actually taken, let’s just talk about straw men that makes him appear to be history’s greatest monster. And what you have crafted is quite the nasty little straw man. It simply has nothing to do with the topic at hand.

    If you happen to be trolling, though, nice work.

  61. 61
    eemom says:

    @JR 36
    @burns 37

    Ah, so two conflicting views on why the WPA might be unconstitutional. Interesting.

    I haven’t studied the issue, but if burnsy’s right that “Congress’ power to declare war has never . . . been seen as completely prohibiting the President from committing U.S. forces to combat without seeking prior Congressional approval” — if there is SCt precedent to that effect — then JR is wrong that Congress’s power to declare war precludes the president from taking any sort of military action without Congressional approval. Burnsy appears to be positing that there’s some zone of Congressionally permissible military action the president may take which doesn’t constitute a declaration of war.

    I also like the point about the ability of Congress to cut off the funding, which demonstrates yet again how this whole brouhaha is nothing more than a political charade by the Fuck Obama From Both Sides brigade.

  62. 62
    d. john says:

    @Trurl, 53

    I think you are right to assume many of these people would be screaming if Bush was doing the very same thing. I’d stop short of singling out someone though, if it were me…

    Frankly, I believe you are wrong on the illegal part. It may be arguably illegal, but until it gets settled in court, there are some legal arguments for what Obama did. I think that you can’t make the case on that, simply because as Xenos rightly put it – the courts have not decided anything. (That said, there are also legal arguments that condone the rape and pillage of our democratic process by the rich, but that doesn’t make it right – see Citizens United)

    I think you might get more traction if you push the moral side of your argument, which has plenty of merit, and isn’t by definition, unsettled. There are plenty of moral angles to play with – pick the one that’s most important to you, and run with it. If you feel it’s illegal there is nothing wrong with that – but I haven’t seen you make the case better than the lawyers involved.

    Look, I’m not saying this to necessarily criticize you. You may even be vindicated after all is said and done, but that may take months.

    I’m just saying that you aren’t gaining ground convincing people on legal merits right now. It’s too sticky to argue definitively.

    For the record, I agree with the thrust of your argument – if you read me, you know I don’t support this war.

    In any case, I am glad you are here – even though I don’t agree with you on the legality of your argument.

  63. 63
    Brachiator says:

    @Jay B:

    Who is ignorant of what now? Ackerman’s point isn’t Village mores, it’s that whereas the Senate plays a role in confirming some of Obama’s other legal appointees, in theory at least, because of their suitability for the job, the White House counsel is a lap dog whose job it is to find the legal rationale for whatever the President does.

    The The Senate’s role, defined by the Constitution, is as follows:

    [The president] .. by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law

    What advice and consent means is anybody’s guess. In the past, nominees didn’t even go before the Senate, and confirmation was largely a rubber stamp. For example, Felix Frankfurter was confirmed without dissent to be a Supreme Court Justice, but this was also the first time that a Supreme Court nominee appeared before the Judiciary committee. And this was 1938, a few hundred years after the founding of the country.

    And we have swiftly gone from theoretical considerations of “suitability” to political litmus tests in which qualifications are entirely irrelevant.

    The confirmation process, or any other Senate action, does not confer a spine on presidential appointees. That solely depends on the caliber of person that the president selects. Elliot Richardson and William Ruckelshaus both resigned rather than fire Special Prosecutor Archibald Cox. Robert Bork was happy to comply. All three were originally Nixon appointees. And strangely, the Republicans still love Bork, even though he was the one who willingly bowed to presidential demands. Go figure.

    So you were saying things about ignorance of history and reality?

    Yeah. I was. I am. Do you have anything factual to offer, or do you want to continue to talk about what happens in theory?

  64. 64
    AAA Bonds says:

    (1) a debate regarding whether or not it is proper for the United States to be mandated by treaties (which are the supreme law of the land and not subject to Congressional encroachment) to get involved in such critical humanitarian peacekeeping missions

    Hmm.

    “Critical”?

    “Humanitarian”?

    “Peacekeeping”?

    Those would seem to be the real points of debate, between you and Glenn, and between pro-Libya-war and anti-Libya-war Democrats.

    It’s a sweet lawyer move, though, tumbling those all together into an afterthought under a numbered point in a list.

    I do agree that attacking legality is a strategic maneuver, often by people who consider this war to be

    1) a non-critical mission for U.S. security,
    2) a non-humanitarian bid to overthrow Gaddafi,
    3) an intervention of choice that does little to “keep the peace” by taking one side in an ongoing civil war.

    The real issue, of course, is that this war is stupid, ideological, and full of hubris, planned by people who think we have the political and social tools to remake the world in a pleasing image that serves our interests.

  65. 65
    d. john says:

    @JR 36,
    @dmbeater 38,

    Thank you for those posts. They were both interesting and thoughtful

    MOAR plz

    =P

  66. 66
    burnspbesq says:

    @eemom:

    “if there is SCt precedent to that effect”

    I don’t think there is (political question doctrine). What there is, is a long history of Congressional acquiescence. There is also Hamilton’s somewhat ambiguous statement in the Federalist Papers about the President being more than just first admiral.

  67. 67
    NoFortunateSon says:

    Dear ABL,

    Thank you again for the wonderful post.

    Glen Greenwald views the world through a legal pinhole. As such, I really don’t see how much weight you can give his analysis. After all, the man (nay, the legend!) is relegated to writing for the Huffington Post’s retarded red-headed stepchild, Salon, under the tutelage of Joan “I resent African Americans” Walsh. Greenwald may be a popular author on Civil Liberties, but let’s not pretend he’s a great legal authority and his analysis carries any weight. After all, the reason why we have courts is because the law isn’t black and white.

    Unlike your current bafflement over what brilliant gambit the 11-dimensional chessmaster is playing now! Why does he risk this oh-so-misleading appearance of an executive power grab? Towards what noble end is he enduring the wrath of his own party – members of which are now suing him in federal court?

    Why can’t they ever use their adult words?

    N.B.: The federal case against Bill Clinton’s involvement in Bosnia vis-a-vis the War Powers Act was thrown out (Clinton v Campbell.)

  68. 68
    dmbeaster says:

    @Comrade Scrutinizer:

    “I’m more interested in the constitutionality of the WPA. Seems like no one wants to make a test case of that issue.”

    What burnsbesq said. Another point in the whole mish-mash of constitutionality is the basic question of whether or not any court is going to get involved in the conflict. There is a separations of powers issue – the conflcit is basically a political question between Congress and the President. We always think of the Court as the sole arbiter of all things constitutional, but that is not strictly the case. Congress ultimately weighs in by controlling funding, and knowing that, why should the court act as referee between the President and Congress concerning war activities when Congress has its own constitutional power to resolve the dispute?

    The WPA serves more as a procedure for addressing the question of authorizing war activity, and to try and define all the gray areas between short term military action and actual war. In other words, to put a less naked political face on conflicts between the two branches concerning war activities. But enforcement of it is just as vexing as trying to write something that is arguably constitutional. It still comes down to political resolve, and Congress holds the power to end any war activity through the power of the purse.

  69. 69
    Tonal Crow says:

    Whatever this war’s legality or illegality, it’s unwise for a President to commit the nation to a conflict without advance Congressional approval absent a serious, imminent or actually-realized threat against the United States. Everything else will keep long enough for our representatives to hash out the pros and cons, and the President should respect the Congress’s authority (and our right and duty to attempt to influence the exercise of that authority) enough to permit it to do so.

  70. 70
    The Sheriff's A Ni- says:

    N.B.: The federal case against Bill Clinton’s involvement in Bosnia vis-a-vis the War Powers Act was thrown out (Clinton v Campbell.)

    B-B-But that was different!

  71. 71
    AAA Bonds says:

    Also, I realize you have a solid grasp of the power of treaties in American law, but when you have Gates coming out and saying this whole thing is us and the rest of NATO can’t even afford it – combined with our real history within NATO and under the treaty – it takes some willful ignorance to buy that we are in Libya because we’re legally obliged to France. (Although I do think this whole thing was proposed by Sarkozy, and as an opponent of blood-for-oil characterization of the Iraq invasion, the sources of France’s much-needed uranium supply make me uneasy about their interests here.)

    The Obama administration is deftly capitalizing on the same strategy used by the Bush administration, and by warmongers throughout the brief history of democratic government: throw everything out there and see what sticks.

    U.S. policy is dedicated to removing Gaddafi! But also, we’re reluctant partners just fulfilling our duty under treaty. America is shouldering the burden almost completely! But those aren’t American bombs falling on Tripoli, they’re “NATO bombs”.

    The warmongers feed lines to their defenders, and their defenders hop around from argument to argument, never having to adequately defend any of them. It’s the courtroom at its best, and the media feels queasy asking hard questions repeatedly if there’s not a quick buck in it.

    The legality argument is some of the same from the other side. So it’s hard for me to take seriously: the President in America, clearly, doesn’t have to follow the laws written by Congress and any argument that he does (ESPECIALLY on foreign policy) is rhetorical posturing that ignores reality.

  72. 72
    Martin says:

    Here’s my comment from last evening:

    With Democrats like these…

    The Ohio Republican told reporters on Wednesday [June 1] that Obama was “technically” in compliance with the War Powers Act, despite criticism from the left and right over U.S. involvement in the Libya campaign.
    __
    “There are a lot of questions that remain out there, and frankly I think members on both sides of the aisle are looking for answers about this, and they’re looking for some clarity,” Boehner said. “Legally, they’ve met their requirements [under] the War Powers Act.”

    So Boehner admits that the administration has done what they are required, and since Congress hasn’t brought the issue to a vote in spite of being notified, I’m not sure what people expect Obama to do here. And the founders would seem to not consider conflicts like the current one to be part of the war authorization required by Congress, as they were perfectly okay with a naval war with France without Congressional approval. And that was waged by such traitors to the Constitution as Adams, Jefferson, Washington, and Hamilton.

  73. 73
    Lolis says:

    I wish liberals were more focused on putting coordinated pressure on Obama to withdraw troops from Afghanistan. When even Joe Manchin is pushing to get out of Afghanistan we could be building on this momentum.

  74. 74
    MattR says:

    @Martin – From that same link, Boehner also says

    “[I]t would appear that in five days, the administration will be in violation of the War Powers Resolution unless it asks for and receives authorization from Congress or withdraws all U.S. troops and resources from the mission,” the Speaker wrote in a letter.

    So I don’t think you can draw any kind of conclusion about what Boehner actually thinks on this issue.

  75. 75
    Jay B. says:

    Yeah. I was. I am. Do you have anything factual to offer, or do you want to continue to talk about what happens in theory?

    Total gibberish. What does Felix Frankfurter, or Robert Bork for that matter, have to do with fucking anything at all? I addressed your idiotic criticism of Ackerman and his claim of important point in the “Beltway”. Ackerman was making the obvious point that in today’s DC, process, indeed the modern process that the Senate construes as “advise and consent” is important to note because they think of it as a check against the Executive branch. I hardly think this is a novel interpretation or controversial in any way. And that the White House counsel, again, irrespective of the rubber stamping of 1938, is widely and correctly seen as a political appointee whose job it is to craft the legal rationale preferred by the President.

    The example you give of the Saturday Night Massacre and Watergate overall is, in fact, a point for the Ackerman argument. The AG and the Deputy AG resigned rather than execute what was, in his mind, a plainly illegal act by the President. Moreover, John Dean, who was Nixon’s lap dog counsel (replacing the previous one, John Erlichman), helped orchestrate the whole cover up.

    That Obama took the legal advice of his White House counsel over that of his AG, head of the OLC and the top lawyer at the Pentagon should make anyone uneasy.

  76. 76

    What burnsbesq said. Another point in the whole mish-mash of constitutionality is the basic question of whether or not any court is going to get involved in the conflict

    All of the court cases challenging the legality of Vietnam were summarily dismissed, for the reasons you say, or put another way. Plenary powers given to one branch of government by the constitution, the other two are loath to define, or encroach upon them in any basic way. It should be obvious the consequences of chaos if they did.

    It’s the Plenary Power Doctrine I linked to a few days ago, such as the President sole and unfettered and unreviewable power to pardon people with legal troubles. Such is the case with war authorizing powers of congress.

  77. 77
    taylormattd says:

    @ Swishalicious – 34

    In the same vein, your self-quote at the stop appears to be incorrect – treaties are not superior to federal law, they are equivalent and, applying rules for the conflict of laws, the later in time controls. Of course, both are trumped by the Constitution.

    This is true, but isn’t it beside the point? Isn’t the point that the WPA explicitly says it does not trump previously enacted treaties?

  78. 78
    Martin says:

    @burns:

    Congress’ power to declare war has never (and I do mean never) been seen as completely prohibiting the President from committing U.S. forces to combat without seeking prior Congressional approval. To cite only one example, Jefferson sent the Navy and Marines into action against the Barbary Pirates without seeking a declaration of war.

    That’s been my understanding of this as well. When the founders talked about ‘war’ they talked about the notion at the time of ‘total war’ – committing the entire nation and all of its forces to a war effort. WWII is what they had in mind, not Libya, and as you note, there’s evidence from the guys that actually wrote the damn thing to suggest that this is correct. Honestly, Libya is as thin of a veneer of war as I think this nation has ever engaged in (in the residual form it’s in, which is all the WPA would apply to since it allows the Prez to jump in and out in 90 days without approval.) I’m still not sure why everyone is so bent out of shape over Libya when Yemen or Pakistan should be much clearer cases – but everyone just glosses over those for whatever reason.

  79. 79
    Brachiator says:

    @Jay B

    indeed the modern process that the Senate construes as “advise and consent” is important to note because they think of it as a check against the Executive branch.

    Bullshit. It’s political posturing.

    And it is comical that you want to cite history and then ignore it. Citing what is a skewed view of “modern standards” is nonsensical, and also ignores political reality.

    In short, neither you nor Ackerman have facts or history on your side.

  80. 80
    John Cole says:

    And I still am not sure why we should be siding with the Republicans on this issue. Shouldn’t we try to think it out for ourselves first?

    John? Are you listening?

    I’m not “siding” with anyone. I’ve never made the argument this is an illegal war. I’ve merely stated that it is silly to claim we aren’t at war when we and our allies are bombing another nation. I have no idea why that is such a controversial proposition, but I’m sure one of you will lawyer up an excuse as to why that is the case.

  81. 81
    d. john says:

    @78 Martin,

    I didn’t want to hang Obama with actions he’s taken that arguably are a result of keeping the lid on a mess started waaay before he took office

    Personally, I forgive him Pakistan because I don’t think it was nearly as much a war of choice.

    That’s just my 0.02

  82. 82
    taylormattd says:

    @ 44 – BTD – June 21, 2011 | 5:57 pm · Link . . . I do not find your legal argument at all convincing. . . . I suppose others might. . . . What I do find interesting is that the Obama Administration has not even forwarded your argument. . . . Does that give you any pause about the strength of your argument?

    Armando, you see that she says right in the post she is confounded by why the Obama Administration isn’t making this argument?

  83. 83
    crybaby peepants says:

    nm

  84. 84
    Tonal Crow says:

    @Martin:

    I’m still not sure why everyone is so bent out of shape over Libya when Yemen or Pakistan should be much clearer cases – but everyone just glosses over those for whatever reason.

    Maybe because those conflicts are arguably authorized by the 9/11 AUMF and both arguably involve heading off real threats to the United States. Neither is true of Libya.

  85. 85
    d. john says:

    @84,
    basically – that.

    And yeah – Pakistan is not exactly a new theatre. We’ve been frenemies since waay before Obama took office, though this specific campaign was new. I still consider it a mess left over from before he was in office.

    Libya, ummm no.
    That was definitely a war of choice. – and a fresh one

    I could be wrong on all this, but you’ll notice here, that I am giving my president the benefit of the doubt on Pak ;)

    Yemen – meh I don’t even wanna open that can of worms.

  86. 86
    Trurl says:

    Obama doesn’t want Congress to have any say so on whether or not he can commit forces to hostilities beyond 60 days as required of him by the War Powers Act of 1973, so he had some of the lawyers who work for him tell him the War Powers Act doesn’t apply to Libya since all we’re doing that’s hostile, per se, is bombing some stuff with them predator drones so our troops aren’t subject to enemy fire. By that benchmark, the destruction of Nagasaki and Hiroshima and Dresden in World War II, long after Japanese and German air defenses had been destroyed, didn’t amount to hostilities wither. If tomorrow we decide to level Iran or Yemen or whatever other little country we’re displeased with at the moment with intercontinental ballistic nuclear missiles, that won’t amount to hostilities either.

    http://zenhuber.blogspot.com/2.....-high.html

  87. 87
    lankyloo says:

    Why is there a picture of Tony Iommi? Are we going to go back to war against Satanists?

  88. 88
    suk says:

    Shorter ABL:

    IT’S LEGAL BECAUSE HE’S BLACK

  89. 89
    Sixers says:

    Breitbaaaart!

  90. 90

    […] say this in the context of a counter-response to the response here to people regarding the war in Libya, and U.S. involvement in it, as both wrong and illegal.  In […]

  91. 91
    DY says:

    Most people in this debate seem to be confusing their arguments about what the law ought to be with what the law is, and it seems like that is the reason they are talking past each other. What I mean by that is that people have passionate views about whether or not a particular action should be Constitutional or illegal and what shouldn’t. But everyone frames those views as whether the action is in fact Constitutional or illegal. In order to do that, you have to first establish that the Constitution or a relevant law provides a determinant, decipherable answer. In other words, it requires showing that there is a right answer, and that the other side is WRONG. But the cogency of arguments of both sides shows why there isn’t a “right” answer about the legality of this war. Indeterminancy, as lawyers call it, is a constant feature of a lot of the law, and most especially Constitutional law and the law related to international relations. In other words, all the energy is being spent arguing about what the law is, even though that is an unsettled question with no right answer. The real question we should be arguing about what we think the law ought to be.

    Let me give an example of how the indeterminancy works – The main thing we are arguing about is the extent of the President’s power under Article II, and whether that power makes the WPA unconstitutional, or if his duty to execute the laws, including treaties, supersedes WPA. Most of the Constitution we are debating consists of this single phrase:

    “The President shall be Commander in Chief of the Army and Navy of the United States…”

    NOTHING in that sentence tells us the answer to any of the questions here. You can spend all day arguing that the CinC power includes whatever amount of power over the military, and whatever power to intervene that you want. Some people argue that the CINC power can only include those powers that the Founders thought it included, or argue that because Tom Jefferson did it, it must be in the CINC power. But none of that actually defines the CINC power. At best, the CINC clause tells us that the President is the top commander – it doesn’t say anything about the power to go to war, anything about air strikes, or anything about Congress. We can answer those questions however we want.

    Fundamentally, it will be an argument about what you think the CINC clause ought to mean, not about what the CINC clause “does” mean. So everyone stop arguing about THIS WAR IS ILLEGAL, ITS A GROSS VIOLATION OF THE CONSTITUTION!!!. It won’t get anywhere, as a quick perusal of these comments demonstrates. We should be arguing about whether or not we want the President to have the ability to commit troops/air forces/drones in engagements like that going on in Libya, or if we want Congress to have that power. Stop citing the Law as if it provides a determinant answer – it doesn’t, and it probably never will. That might get us all to stop talking past each other.

  92. 92
    eemom says:

    I’ve never made the argument this is an illegal war. I’ve merely stated that it is silly to claim we aren’t at war when we and our allies are bombing another nation. I have no idea why that is such a controversial proposition, but I’m sure one of you will lawyer up an excuse as to why that is the case.

    Thanks Cole. We lawyerers up of excuses appreciate your contempt.

    I’m sure you’ll insist that you’ve read the thread, but you haven’t been paying attention to the actual arguments that have been discussed, or you wouldn’t dismiss them so easily.

    Much better to suck up to Hamsher hacks like dday who think as sloppily as you do.

  93. 93
    Keith G says:

    It is certainly a shame that Obama did not find a way to get Congressional assent on this (and it seems to me that it was more than possible) as it would provide a bit of shared responsibility. Shouldn’t the citizens of the world’s greatest republic be able to use their elected legislators to have a say in this military conflict a little bit closer to the front end?

  94. 94
    suk says:

    Short of personally murdering someone on live television, nothing Obama could do will receive ABL’s condemnation.

    Rather, she’ll strain for a legal or ethical or strategic interpretation that whatever it is, however obviously wrong, is legal, ethical, or strategic.

    Why is this?

  95. 95
    Gus says:

    Frankly I could give a fuck if it’s constitutional. I just think it’s a stupid idea.

  96. 96
    ABL says:

    IT’S LEGAL BECAUSE HE’S BLACK

    hahahaha

    ::wipes tear of mirth::

  97. 97
    ABL says:

    Rather, she’ll strain for a legal or ethical or strategic interpretation that whatever it is, however obviously wrong, is legal, ethical, or strategic.

    wow. it’s like you are looking through a window into my SOUL.

    Why is this?

    well, obama’s mother is white, my mother is white. IT’S BECUZ WE’RE BOTH HALFRICANZ!!!11ONE

  98. 98
    OzoneR says:

    On those facts, I would agree with him. Those are crimes, not acts of war. You could prosecute his ass, but you couldn’t bomb it.

    I meant to imply that he was back in his country and not giving up willingly

  99. 99
    BTD says:

    Matt:

    She does not understand it, but it does not give her pause.

    She may want to consider that her argument is wrong. If the party who would be most motivated to adopt your argument does not, you may want to consider that your argument is wrong.

    I’m not seeing that.

  100. 100
    FuzzyWuzzy says:

    It just seems that when it comes to a good bloodfeast, nobody seems to give a shit about the rule of law if it interferes in any way with the ass kicking we are about to deliver, regardless of the party in power.
    Ciudad Juarez is our future.

  101. 101
    Keith G says:

    Suk, I disagree with quite a bit of what ABL types and yet I have found myself disagreeing with 100% of what you have been posting.

    Why is that?

  102. 102
    Corner Stone says:

    @BTD

    She does not understand it, but it does not give her pause.

    If ever there was a ready made tag line for an FP poster here…

  103. 103
    burnspbesq says:

    @John Cole:

    “I’ve merely stated that it is silly to claim we aren’t at war when we and our allies are bombing another nation. I have no idea why that is such a controversial proposition, but I’m sure one of you will lawyer up an excuse as to why that is the case.”

    I said a couple of nights ago that your common-sense view of whether we are engaged in “hostilities” in Libya makes sense to me. The fact remains, however, that we are in a legal gray area because Congress failed to define the term in the War Powers Act. That’s not just my view; stroll on over to lawfare.com and you can hear it from Jack Goldsmith, who probably forgets more about this area of law every day than any of us will ever know. All we can say with any degree of certainty, based on the legislative history, is that Congress probably intended “hostilities” to be broader than “war,” as that term was understood at the time.

  104. 104
    Keith G says:

    @Corner Stone Hee.

    Did you get wet yet?

  105. 105

    That might get us all to stop talking past each other.

    I been more or less saying the same thing and the lack of detailed, or any instruction in the constitution about how these powers are to be used, and when, and under what circumstances. But in the end, it was Congress that received the clear and uncontroverted big stick with controlling taxpayer cash and how it is spent, or not spent.

  106. 106
    burnspbesq says:

    @suk:

    Well-chosen handle.

  107. 107
    Sly says:

    I’m more interested in the constitutionality of the WPA. Seems like no one wants to make a test case of that issue.

    There have been attempts, the last one being in 1999, but they’ve never gotten passed the court of appeals. The judiciary has generally declined to hear the case over issues of standing and justiciability (whether the court has the ability to make a binding ruling). It’s a political question, in other words, and the court leaves political questions to be settled by the political branches of the government.

    In Campbell, for example, the district court tossed the case because the legislators who sued Clinton had alternative means at their disposal that didn’t involve dragging the judiciary into the whole mess. They could vote to end the conflict. They could cut off appropriations. They could impeach. If none of those options are viable because the complaining party lacks the votes to implement it, the court basically tells them to screw off.

    The suit brought against Obama by Kucinich & Co. suffers from the same basic problem, and will likely be thrown out after a motion to dismiss is filed.

  108. 108
    Corner Stone says:

    @Keith G
    You have to remember this is a Ban-She thread, so let’s keep it on topic.
    The war we’re currently engaged in against El Nino has so far proven to defeat all insurgents South of 610.
    IOW, not a fucking drop for about 3 months.

  109. 109
    LT says:

    The shittiest part of this post and so many comments here on several posts on the subject is the “Oh how those whiners whine about something so trivial as legality!”

    You should have put the word “quaint” in there.

  110. 110
    MomSense says:

    Like ABL, this is the conversation that I think we should be having. Wouldn’t it be nice to have this conversation in the spirit of learning from each other and not outsnarking each other?! There are sound legal arguments on both sides of the issue making this a worthy and interesting debate. It is by no means a cut and dry issue. Can’t we enjoy this just a little bit even if to simply acknowledge that a learned discussion among people who care enough to research the particulars of constitutional law is a very good thing?

    You can go back to the Constitutional Convention to see the beginnings of this same conversation about what constitutes a war with the founders choosing the language that Congress shall “declare war” in recognition of all the times when US forces would be dispatched to protect trade routes, defend against pirates, and hundreds of other conflicts that took place in the early years of our nation that did not rise to the level of a formal and declared war. Justice Washington made the distinction between “solemn wars” and “imperfect wars” to acknowledge this reality. Today we are debating the term “hostilities” but it is really the same argument. It is an honest argument and one that has a long history and should not be dismissed so lightly.

    Article VI very clearly states that treaties shall be considered supreme law of the land. The idea that treaties are subject to federal statute, to me, is not convincing. The choice of the word “supreme” is key.

    “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land;”

    I am not sure how this would be decided should it be tried in Federal Court or the Supreme Court. It is a tough call and so I am really more interested in this aspect that ABL mentions in her post.

    “Whelp, here we are three months later, still not talking about the United Nations Charter and still not talking about the role the United Nations should play in American foreign policy decisionmaking.”

    When the UN was founded it was intended to be a force for preventing wars and human rights atrocities. It was clear to the founding nations, having just survived WWII that the UN must not be a failure like the League of Nations and therefore the UN Charter includes coercive means including economic sanctions and military force.

    When you look at the ratification of the UN Charter, the US Senate specifically debated an amendment that would have whether required Congress to authorize UNSC sanctioned use of coercive means. This amendment failed 65-9.

    Then you look at the 1973 WPR. When you read the House Report on the WPR and consider that we were at the height of the Cold War you realize that there is no way the US Congress wanted to undermine the North Atlantic Treaty Organization. That 1547 b and d(1) specifically declare existing treaties to be outside of the jurisdiction of the WPA was essential to preserving our key alliances against the USSR. You also must consider that we were assured that the US would not be dragged into a war we did not consider in our national interests by our permanent status and veto power in the UN Security Council.

    But after years of cold war machinations interfering with the security functions of the UN, the terrible failures to prevent atrocities like Rwanda, I welcome the UNSC resolution in Libya and I especially approve of the US’ limited or “leading from behind” role.

    Look at this issue morally. We worked with the international community and in accordance with international law to prevent a certain massacre of innocent Libyans. And this is the least “chest thumping” sort of US military operation that I have ever seen. I came of age during the Iran hostage crisis when American flags were burned while people chanted “death to America”. Contrast this with Libya where we saw ordinary people taking to the streets to thank France, England, and the US. In the context and with the strategic considerations resulting from the Arab Spring–I think this is something to applaud.

  111. 111
    LT says:

    “So, by arguing a case the President isn’t making, while actually ignoring the one he is, specifically one that disregards the War Powers Act, you sure are showing a determined connection to legal realism! And those fucking hippies, like Yale Professor Bruce Ackerman, who state that it’s a very dangerous precedent and of dubious legality aside are simply unserious “black and white” Obama haters for whom no attention must be paid because they know jack shit about anything.”

    A-fucking-men.

  112. 112

    You should have put the word “quaint” in there.

    Oy just fuck you with the Gonzales reference/slur. You don’t give a shit about the legalities, and are just using your version of them to discredit obama and the UN action in Libya. Because if you did really care, you would realize it is a very gray area all around, with pro and con arguments that have been going on since the founding, on the finer details of powers granted the branches of government.

    And none more so than everything surrounding using the US military, or otherwise visiting violence on some foreign land. Just say you hate this shit, and don’t believe it is worth it, or justified morally, or whatever. But to claim you have the answers to the “legality” issue is just so much bullshit that won’t be bought be many around here.

  113. 113
    burnspbesq says:

    “That Obama took the legal advice of his White House counsel over that of his AG, head of the OLC and the top lawyer at the Pentagon should make anyone uneasy.”

    It would if that were what happened, but that’s a fundamentally misleading description of what happened, because it ignores Koh’s role in the process. Koh knows this area of law as well as anyone ever has. Had this issue been put through the normal process, where OLC gets input from other agency lawyers with relevant knowledge and experience, it’s entirely possible that Koh would have won the debate and the OLC opinion would look like the 32-page memo that Obama sent to the Hill last week. We’ll never know.

  114. 114
    LT says:

    General Stuck

    It has taken me far too long here at BJ to learn to just ignore you.

  115. 115

    MomSense

    Thanks, wonderful comment!! I always say Momsense makes the most sense of any sense.

  116. 116
    Corner Stone says:

    it’s entirely possible that Koh would have won the debate

    Koh and Bauer did win the debate. Obviously, President Obama agreed with them, ergo, they won the debate.

  117. 117
    Ghanima Atreides says:

    If i might point out this one more time, ABL, cher, Libya costs the US 2 million/day, as opposed to Iraq and A-stan, which cost 100 million dollars/day.
    .02%
    That is because we are cost-sharing with other nations.

  118. 118
    Uncle Clarence Thomas says:

    .
    .
    @41 Matthew

    enjoy your ridiculously destructive empire, assholes. keep arguing over which of your seven wars is justified. your entire country is dying slowly, poor people are being forced to accept entitlement cuts, and you’re busy justifying another expenditure in establishing america’s warmongering empire. congratulations, jackasses. the democrat party is an official accomplice to neo-con genocide. yay, democracy.

    Matthew, you are correct. But you cannot expect balloonbaggers to see “the big picture.” Welcome to the hive mind at its myopic worst.
    .
    .

  119. 119
    Keith G says:

    @Corner Stone: Just as I stepped out of Central Market on Weslyan, I got hit by a 2 minute downpour. My place 2 mi east barely got a drop. As dry as Tripoli, but without the errant missiles.

  120. 120

    It has taken me far too long here at BJ to learn to just ignore you.

    That’s cool, but I won’t be ignoring you if you insist on bringing the FDL grade bullshit like on this issue. Nothing “quaint” about that.

  121. 121
    AxelFoley says:

    I haven’t read any other post yet, but something tells me this diary’s gonna be a good one.

  122. 122
    Corner Stone says:

    @AxelFoley

    but something tells me this diary’s gonna be a good one.

    No doubt, dawg. No doubt whatsoever.

  123. 123
    LT says:

    Stuck

    You see FDL in every shadow. And in every light, too. And it ignites a fury in you that is kind of amusing to watch, but ridiculous to respond too because it makes you stupid. (And YOU are going to talk about gray areas? Fuck me with scissors, that’s too much.)

  124. 124
    Alan in SF says:

    We are still listening to the musings—This War Is Illegal!— proffered by all sorts of constitutional law experts like Michael Moore, Dennis Kucinich, and Eugene Robinson. And finally Glenn Greenwald, of course, is still claiming that This War Is Illegal!, having not at all addressed any of the issues regarding the interplay between Articles 42 and 43 which I raised in my post

    Um…also the Attorney General, the Office of Legal Counsel, and the Chief Counsel of the Defense Department. AKA, the legal authorities with standing in this matter. I can’t speak to your analysis of Articles 42 and 43, but maybe you can explain why the the A-G, OLC, and the DOD Counsel are wrong and you’re right.

  125. 125
    AxelFoley says:

    @ BO_Bill:

    I have a teabagger friend who enjoys a turbulent relationship with a female who, to the rest of the world, appears sane. Their current status is talking, but no intimacy. This female had purchased for him some cologne and he used probably 70% of the bottle, and now she went by his place and stole it. We conclude that this action was to prevent him from using it to attract other females.
    The Nature of female-female jealousy is very powerful. This jealousy becomes much greater when focused upon women possessing higher sexual capital. When females are placed in positions of government, these feelings of jealousy can manifest themselves in Global Wars. Hillary Clinton and Samantha Powers made the decision to go to war in Libya and…
    Here is the reason.
    Muammar is not ashamed of his masculinity, and his bodyguards sure seem to delight in their femininity. These happy and attractive women, you must understand, are heresy in the eyes of Yale-educated women. American-educated women are willing to kill to defend the religion that gives them sexual solace. Right now these ladies have the United States Marine Corps preparing for invasion. They are dangerous.

    Oh, goodie. Nine posts in and we are treated to a Brick Oven Bill…rant? A soliloquy? A stream of consciousness?

  126. 126
    mclaren says:

    As you persist in mouthing inane legalisms, ABL, you heap shame on yourself and on Obama.

    It proves chilling that many of the same crimes of which the defendants at the Nuremberg trial were convicted — including ordering the murder of their own citizens without a trial, conducting aggressive war against foreign countries with a declaration of war or any sensible justification, or murdering large numbers of innocent civilians in other countries — are exactly the same crimes which Barack Obama has committed, and continues to commit.

    When I watch the Nuremberg scenes in Adam Curtis’ documentary The Living Dead, it freezes the lymph in my glands because in my mind I see people like Obama and people like you sitting in the dock and a prosecutor shouting “Isn’t it true that you ordered and conspired and assented to use pilotless drones to murder tens of thousands of women and children in wedding parties?”

    And in response you mouth your vacuous legalisms…just like the defendants at Nuremberg. And in response American army officers bleat “But I was only following orders!” Just like the defendants at Nurember. And in response, the members of the Balloon Juice commentariat screech “We’re at war, and war isn’t pretty!”

    …Just like the defendants at Nuremberg.

  127. 127
    eglantine says:

    Both international law and domestic law place restrictions on the use of force. For a war to be legal, it must satisfy both sets of requirements. The Libya intervention may be in compliance with international law, because it is authorized by a UN Security Council resolution. However, it is in violation of US domestic law — both the Constitution requiring that foreign wars be authorized by Congress, and by the War Powers Act requiring Congressional authorization of military force used abroad within a fixed period of time. So, in brief, this is an illegal war. (Conversely, if it complied with domestic law but violated international law, it would still be illegal.) Bruce Ackerman and Glenn Greenwald are right.

  128. 128
    AxelFoley says:

    @ Troll:

    2008: Change You Can Believe In
    2012: Stop Me If You Can

    LAWL

  129. 129
    MomSense says:

    Just thought I would add this quote from President Obama.

    Back in March the President said this “obtaining Congressional approval for these attacks was unnecessary because they had already been cleared by the United Nations”.

  130. 130

    You see FDL in every shadow.

    Just the bullshit, or i could just say nutroots to broaden the sources of it. And again, you whine and don’t actually answer my criticisms of what you are after and attempting to blow smoke up our asses with dime store legal theories cranked out by ideologues.

    Just be honest in want you want, or don’t want, and stop trying to stamp the dubious “illegal war” charge onto Obama, especially when he is acting legally via the UN, which is the only fact that is verifiable regarding the legality of our actions regarding Libya.

  131. 131
    MomSense says:

    @General Stuck

    Thanks! I will admit to anyone here that I am wrong about many things–as long as all y’all promise not to tell my kids!

    I have teenagers and I’m just trying to stay 10 seconds ahead of them!

  132. 132
    Keith G says:

    @MomSense

    Back in March the President said this “obtaining Congressional approval for these attacks was unnecessary because they had already been cleared by the United Nations”.

    There is a distinct possibility that the West Wing will come to regret that exact formulation.

  133. 133
    The Sheriff's A Ni- says:

    It wasn’t enough to excoriate Obama for not being the next FDR or LBJ, now he’s being railed for not being the next Warren G. Harding.

  134. 134
    MomSense says:

    @ Keith G
    Oh I agree that this will be a problem with the right wing, Bolton crowd, black helicopter, isolationist, crowd.

    I am an unapologetic internationalist. I want a stronger UN. I want the US to work with the international community to stop the spread of nuclear weapons, prevent human rights abuses and atrocities, finally do something about climate change, deal with the lack of potable water, poverty, HIV AIDS, pandemics.

  135. 135
    Johannes says:

    MomSense (No. 129),

    Section 6 of the United Nations Participation Act of 1945 provides in part that “he 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.” See http://avalon.law.yale.edu/20t.....cad031.asp Thus, the argument would be that our participation in the UN’s Libya action is pre-approved by the UN Participation Act, and would be an exception to the WPA. (Even though it pre-dates the WPA, the UN Participation Act would almost certainly survive its enactment under the maxim “the specific controls the general.”)

    Unless I miss my guess, this is ABL’s argument:

    1. The UN action was taken under under Art. 42 of the UN Charter (dee her original linked post);

    2. Our action in Libya is therefore pre-cleared by Congress;

    3. Bite me.

    I actually think that this argument is pretty well founded, although some criticisms of it claim that its proponents are not viewing the section quoted in its full context. FWIW (I am a lawyer, but this is so not my field), I find these interpretations rather unconvincing as in tension with the statutory language.

  136. 136
    fuzz says:

    This is going to make me sound like an asshole, but even if the war is illegal, what the hell is anyone going to do about it? The ICC needs wars in order to give it any kind of ability to take action on its words. The Hague and the ICC are basically the place where you go if you lose the war, the Croatians, Bosmians and Kosovars committed plenty of war crimes themselves but nothing will happen because they won. The lesson Qaddafi and every other dictator has to be getting from this is that there is no point in going out peacefully because you’re going to end up in international court anyway, so you might as well fight. And that is in the rare instances when the international court actually does anything. Repulika Srpska? Sure, we’ll arrest them. But what the Russians did in Grozny gets nothing because Russia provides the oil and gas to Europe, and what the Sri Lankan government did to end the Tamil civil war in 09 (watch the British Channel 4 doc called Sri Lanka’s killing fields for a background) will result in nothing happening because they have China and India as their international backers. The ICC has also issued warrants for al-Bashir, but he isn’t important enough, and Pinochet, which only served to open old wounds in Chile and lead to rioting. If a country wants to deal with their old tyrants let them do it themselves, like Argentina and the dirty war officers.

  137. 137
    bourbaki says:

    Johannes,

    I am not a lawyer, but the act you cited was amended in 1949
    see here
    In particular, section 6 was amended to include:

    . (a) Notwithstanding the provisions of any other law, the President, upon i-ha request by the United Nations for cooperative action, and to the extent that he finds that it is consistent with the national interest to comply with such request’ may authorize, in support of such activities of the United Nations as are specifically directed to the peaceful settlement of disputes and not involving the employment of armed forces contemplated by chapter VII of the United Nations Charter-

    This seems (to me at least) to be a pretty unambiguous statement that the only action allowed under Article 42 without congressional approval is peaceful (later on it says something about forces acting as a guards).

    This is more or less what appears in the US code
    so presumably is the current law (again I’m not a lawyer).

  138. 138
    LT says:

    Stuck

    You have accused me of being an FRDLer – I go there sometimes to read DDay, TBogg, Marcy, glance through the front page, I’m not a member, don’t give them any money, and think Jane Hamsher crossed a line and revealed something ugly about herself when she called John homophobic; you’ve accused me of not wanting any action in Libya – I was impressed that Obama chose to go there, and I totally supported stopping the slaughter of civilians; you’ve accused me of just wanting to bring Obama down – I knocked on doors for Obama, something I have never done before for any politician, and, as I said, I will definitely vote for him in 2012.

    When these things are pointed out to you, you display that you have absolutely no ability to admit anything like a wrong about yourself. You just move on to another chapter in your volumes of ragegasm. You, in short, are an idiot, and a coward, and not worth any time. You can correct this. But you won’t.

  139. 139
    MomSense says:

    @Johannes
    I wouldn’t want to speak for ABL but I would say that 1. the UN action in Libya was taken under Article 42 of the UN Charter. 2. The WPA explicitly allows for the President to use force in conjunction with the UN (1547 b) and explicitly does not interfere with existing treaties (1547 d1) and therefore does not require Congressional authority.

    @eglantine
    Please do cite the text in the US Constitution that says that Congress must “authorize” war.

  140. 140
    bmull says:

    139 comments, plus the author who is an attorney, and only two people seem to correctly understand the basic constitutional law principle that “supreme” in the Constitution means “over the states.” There are a small mountain of Supreme Court decisions that make clear that a treaty can never override an act of Congress which in turn can never override the Constitutiton. Think about it: Could we have a treaty with the Vatican that outlawed abortion. Yes if Ms. ABL’s interpretation is correct. And it would only require a vote in the Senate. The House would have no say in the matter.

  141. 141
    MomSense says:

    @bourbaki
    I think the section that you cite pertains to special arrangements that may be made in coordination with the UN but outside of Chapter VII Article 42 of the UN Charter.
    Article 41 deals with economic sanctions, etc. Article 42 deals with use of force and Article 43 deals with special arrangements.

  142. 142
    Johannes says:

    @bourbaki: As I said, this isn’t my field, but the language you cited appears to be from the new section 7, and the amendment to section 6 merely amends the Proviso to add “except as authorized in section 7 of this Act,” after the “that” , so that sec 6 now concludes “That, except as authorized in section 7 of this Act, nothing herein contained shall be construed as an authorization to tile 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 new section 7 seems to me to thus in addition to, not instead of old section 6 authorization. I admit, I could be wrong on the upshot here, but I think MomSense has this right.

    Sorry if the self-identification as a lawyer made me sound like a blowhard; I cheerfully agree that I’m out of my specialty area here, but since we sometimes get into law-wars on this blog, I thought I should volunteer the info while acknowledging that, in this area, it doesn’t translate to expertise.

    Can I at least get an “Amen” on the “bite me” component of the argument?

    @MomSense: Actually, that’s a great point, and I should have caught that. There is no statutory conflict between the WPA and the UNPA, and I added an extra step by not following the text beyond the WPA provisions normally relied on to claim that the Libya, er, whatever it is, is contrary to the WPA. Sloppy work on my part.

  143. 143
    brmull says:

    @MomSense (#139):

    Article 42 arguments are specious because in the United Nations Partication Act (UNPA) Congress made clear that they wanted to maintain control of troop deployment.

    The lone exception to prior Congressional approval in the UNPA is:

    the President, upon the request by the United Nations for cooperative action, and to the extent that he finds that it is consistent with the national interest to comply with such request, may authorize, in support of such activities of the United Nations as are specifically directed to the peaceful settlement of disputes and not involving the employment of armed forces contemplated by chapter VII of the United Nations Charter —

    (1) the detail to the United Nations, under such terms and conditions as the President shall determine, of personnel of the armed forces of the United States to serve as observers, guards, or in any non-combatant capacity, but in no event shall more than a total of one thousand of such personnel…

    The above doesn’t apply to Libya. And the WPA doesn’t apply to Libya at all because (a) it’s not a national emergency and (b) we’re beyond 60 days.

  144. 144
    bourbaki says:

    Momsense

    Again I’m not a lawyer, but the full passage from the US Code

    is

    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, except as authorized in section 287d–1 of this title, 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.

    Here section 287d-1 is the amendment the first part of which I already quoted.

    Unless there is some technical meaning for a colon in the law that is at odds with standard grammar there seems to me to be no way that the clause

    Provided, That, except as authorized in section 287d–1 of this title, 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.

    Can refer to anything but article 42 actions.

  145. 145
    EJ says:

    Johannes,

    So did you think you were being clever in carefully editing out the rest of Section 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.

    The president can’t unilaterally deploy any armed forces in a combat role beyond what he’s allowed by a pre-existing Article 43 agreement, and no such agreement exists. It’s convoluted but quite clear.

  146. 146
    bmull says:

    EJ (#145) You’re correct.

    I don’t know who originated this Article 42 argument but it’s a fringe view that has not been taken up by any expert that I know of.

  147. 147
    Shade Tail says:

    mclaren:

    …Just like the defendants at Nuremberg.

    I can’t decide whether your hyperbole is amusing or eye-rolling. This line of yours alone is probably the stupidest thing anyone has posted in this entire comment thread. You had to twist like a pretzel, and even outright lie about what Obama and ABL have said, to make that comparison.

  148. 148
    AAA Bonds says:

    IT’S NOT WAR . . . WHEN WE USE ROBOTS™

  149. 149
    eglantine says:

    @MomSense. I’m referring to “Congress shall have the power … to declare war.” We know from the Convention notes that the framers intentionally gave that power to Congress rather than President. I also read section 6 of the UN Participation Act as requiring the President to seek congressional authorization for any use of armed forces under articles 42 or 43 of the UN Charter. I am guided by Louis Fisher’s book “Presidential War Power” as well as the Constitution Project 2005 report on “War Powers in a System of Checks and Balances.” The report states that “Congress must perform its constitutional duty to reach a deliberate and transparent collective judgment about initiating the use of force abroad except when force is used for a limited range of defensive purposes” and that “The President must seek advance authorization from Congress for initiating the use of force abroad except when force is used for a limited range of defensive purposes.”

  150. 150
    AAA Bonds says:

    I think the scholastics got a bad rap compared to y’all.

    Is this some sort of liberal lawyer Dungeons and Dragons game I’ve stumbled into? Argue about whether Vietnam was constitutional or whatever?

  151. 151
    Johannes says:

    No, EJ, I didn’t think I was being clever; I linked to the text, and further referred to ABL’s original post referred to and linked by her in the main post. ABL’s analysis drew on this post: http://jenkinsear.com/2011/03/.....and-libya/

    I agree that if Article 42 is not implemented properly in executing of the UN Resolution then this argument fails. I’m not convinced that such is the case here.

    I should point out that I failed to provide the US Code citation for the UNPA, which may have led to some confusion; it’s 22 USC Section 287(d) The text is here: http://www.law.cornell.edu/usc.....d000-.html

    Jeez, what is this place, a refuge for a snarling mass of vitriolic vicious jackals?

  152. 152

    LT

    . You, in short, are an idiot, and a coward, and not worth any time. You can correct this. But you won’t.

    LOL, you forgot brigand and all around asshole. Is this a duel challenge, fifty yards with keyboards.

    I said you brought FDL grade bullshit. Nothing about whether you’re a member there, or not. And to confirm it, you started out this thread with a little quip of “quaint” per Alberto Gonzales for those of us trying to in good faith understand the complex issues surrounding the legal issues of the situation.

    Now quit whining, and get back to ignoring me like you promised. or not, and just quit whining and delivering schoolyard taunts on the internet. Your choice.

  153. 153
    AAA Bonds says:

    Man, I am ready to get my fucking kinetic military action on! Hoo-wee!

    I am going to not amount to hostilities all over this city with my robot plane, to not kill this leader the President says “must go”.

  154. 154
    AAA Bonds says:

    “Quaint”? Man, this is motherfucking priceless, this thread right here.

  155. 155
    Ed Marshall says:

    The stupid shithouse lawyering is boring and totally irrelevant. What’s more interesting to me is that I was consuming a large amount of Arab media before the action in Libya and the consensus throughout the Arab world was that the U.S. would act to protect their client in Libya and it’s pawns in NATO. Their preconception was completely different, and the only person I saw making the U.S. imperialist, war for oil argument was As’ad AbuKhalil on Al Jazeera, and he was specifically dressed down as not being an Arab anymore because he lived in Los Angeles for the last 30 years and that he was “westernized”, and that was responsible for his viewpoint (they were accusing him of being an American leftist instead of an Arab).

  156. 156
    Corner Stone says:

    I’m going to kinetic action your ass, bitchez!

  157. 157
    Vain Egotist says:

    Praust notes:”The Security Council’s decision to authorize force is therefore binding on members under Articles 25 and 48 of the Charter, but because it merely authorizes force and does not require members to engage in such enforcement measures, each member has some discretion whether to join.” Per italicized text, the US is not obligated to send troops to Libya. Thus Obama does not violate US obligations to faithfully execute its obligations under the charter by not bombing Libya. So the question is whether the President or Congress has the power to authorize the use of force in Libya, pursuant to a non-binding resolution in the UN. If Libya counts as a war, the answer is Congress, unless one is willing to argue that Congressional ratification of the UN Charter granted the President the constitutional authority to engage in wars of choice.

    Regarding NATO, it is a defensive alliance. This action is outside its charter (as was Serbia). No NATO member was attacked so any NATO obligations are irrelevant.

    Without being obligated to send troops to Libya by the UN Charter or NATO, this is a war of choice, subject to the limitation of the WPA and the constitution itself.

  158. 158
    AAA Bonds says:

    There is some serious robot precedent being established here. New furrows being formed in the fertile legal soil of robottery and robotsmanship, as it turns out that if we pilot our killing machines remotely – boom! – we’re not actually IN the war!

    Get it? Not a war. I mean, how can we be at war, when that guy is just sitting over there eating Fritos and playing on the computer? That’s the main guy right there. He killed like eight people yesterday, no lie, blew them to fucking pieces with Hellfire missiles.

  159. 159
    bourbaki says:

    Since I find this legal minutea sort of fascinating I was wondering what the people who are arguing for the difference between article 42 and article 43 actions are basing this on.

    In particular, if you look at chapter 7 of the UN charter you see that Article 39 (the first one) states:

    The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.

    Here article 41 regards actions not involving military force while article 42 regards those that do.
    There is no mention of article 43 which seems to just explain in more detail the manner in which the militaries of the member states are to support article 42 actions.

    I guess this is what bmull was referring to as the standard view.

  160. 160
    burnspbesq says:

    @bmull:

    There are a small mountain of Supreme Court decisions that make clear that a treaty can never override an act of Congress which in turn can never override the Constitutiton

    I call. Citations, or GTFO. What you’re describing is absolutely not the Supremacy Clause that I learned in Con Law.

  161. 161
    Xenos says:

    JR @36- In the course of your work on this subject, have you found if there is a consensus as to congressional intent? This seems a critical issue, as the WPA was passed in response to Nixon’s secret expansion of the war in Vietnam to Laos and Cambodia.

    It was not secret to the Laotians of the Cambodians, but it was kept secret from the public and Congress. The WPA was set up (I think, please correct me if I am wrong) to make such secret wars automatically illegal by action of law after the deadline for Congressional approval.

    Thus, the openness of the fighting in Libya, being done under NATO and UN sanction, seemed to take it outside of the WPA, as there is no reason Congress can not take action to stop this fighting if it sees fit. The doctrine that courts should avoid deciding constitutional issues if a dispute can be settled on other terms could well have this whole dispute decided, in court, on such congressional intent grounds.

  162. 162
    MomSense says:

    @Johannes
    I hope I’m not snarling. I think it is very cool that we are all doing this unassigned homework simply because we are interested. Really, I have no idea which interpretation is correct–so we must exercise our best judgment which is at the heart of the controversy when it comes to the use of force. So bite me!!

    bourbaki–I still think that this refers to special arrangements outside of Chapter VII Article 42.

    I can’t remember who made the comment about the Supremacy Clause as being “over the states”. This is Justice Marshall’s interpretation. Treaties are considered equal with federal laws–above the states–and part of the Supreme law of the land.

    And to eglatine. There are different interpretations of the reasons why the framers changed the language from “make war” to “declare war”. Some say it meant that only Congress could initiate war. Others say it was meant to provide latitude to the President if we faced a threat or if there was a perceived interest–think Adams against the French to protect our merchant fleet. Again, we can have an interesting debate as have generations before us but it isn’t a cut and dry issue.

    But I would really love to hear more discussion about the US relationship with the UN when it comes to foreign policy.

  163. 163
    LT says:

    Stuck:

    You have, i the past, said things like “Go back to FDL.” But whatever, it’s the least of my complaints about you.

    And to confirm it, you started out this thread with a little quip of “quaint” per Alberto Gonzales for those of us trying to in good faith.

    Oh fuck you. Good faith?

    Oy just fuck you with the Gonzales reference/slur. You don’t give a shit about the legalities, and are just using your version of them to discredit obama and the UN action in Libya.

    You are entirely full of shit. And, again: You have no ability to admit it when you’re plainly wrong. That is cowardly. That’s not a taunt, it’s the only way to describe what you’re doing here. It’s also ver NOT “good faith.”

    P.S. The “quaint” comment was a reference to ABL’s repeated ridiculing of people even having questions about the legailty of whaat we’re doing in Libya. Like the “musings” comment above, and this unintentionally hialrious one:

    someone upthread (eemom maybe) said it’s an excruciatingly close call, as these sorts of legal quandries often are, and i’m immediately set on edge by glenn greenwald’s ZOMG! IT’S ILLLEAGLE hair-on-fire sanctimonious bullshit.

  164. 164
  165. 165

    LT

    So you used the well know term “quaint” not as a reference to Alberto Gonzales using it to describe the Geneva convention ban on torture and other requirement? I don’t believe you and care less. I call you a liar and a coward. And a big whiny brat. So there. All even.

    Yawn. are you going to keep up with this butthurt name calling all night? You’re not doing a very good job of ignoring me, like you promised.

  166. 166
    Xenos says:

    AAA Bonds @157
    __
    There is some serious robot precedent being established here. New furrows being formed in the fertile legal soil of robottery and robotsmanship, as it turns out that if we pilot our killing machines remotely – boom! – we’re not actually IN the war!

    The lack of facts in this debate is a major problem here. All I can get from the news is a statement back in April that the US will deploy rotating patrols of two predator drones at a time over Libya. I am sure the drones carry missiles, but they may not have used them so far.

    Since we don’t have troops or planes involved in this fight, if we stopped the drone patrols before the deadline, would we be alright with the WPA as far as you are concerned?

    I am as guilty as anyone when it comes to farting around with airy constitutional analysis. But we don’t have much of the way of facts being determined here. And which governmental body is in charge of oversight and should have had hearings here to establish the facts? Oh yeah, Congress, the same guys who ought to shit or get off the pot in regard to enforcing the WPA.

  167. 167
    El Cid says:

    Kucinich on a number of occasions has expressed that for him a major goal of this lawsuit is to have the Court clarify, or at least clarify more, Article 1 Sec 8 as well as the War Powers Act.

    Yes, obviously he’s arguing that current (and prior) Executive military actions are in conflict with those two.

    But he does appear to understand that the conflicting legal arguments (and holding precedents) are quite strong and in my view that they will more than likely defeat his (and etc) suit. Stating a goal of forcing some clarification on these matters would also then make a defeated lawsuit more purposeful.

    In that recent Democracy Now! interview, he even noted that they might not even be granted standing.

    Whether he’s been consistent or clear in expressing that aim, I don’t know.

    But it does seem like at some time or other it might be useful for the Supes (the Platonic hyper-universe ones, not so much the Court we have now) to outline some of these issues.

  168. 168

    Night, everyone.

    Night Momsense. I really like your commentary, and hope you stay on to comment here regular. :)

  169. 169
    LT says:

    So you used the well know term “quaint” not as a reference to Alberto Gonzales using it to describe the Geneva convention ban on torture and other requirement?

    Of course I did. Are you dense?

  170. 170

    Since we don’t have troops or planes involved in this fight, if we stopped the drone patrols before the deadline, would we be alright with the WPA as far as you are concerned

    I have asked this question several times the past week or so to some of those most opposed to our involvement in Libya as being “illegal” and haven’t yet received a pertinent response. Though I have been called a liar, coward, and one or two other sweet nothings.

  171. 171

    Of course I did. Are you dense?

    It was hard to tell with the double talk gibberish you put out, interspersed with epic whines. Oh, and therefore it is utter bullshit to compare anything ABL has said about this issue with Alberto fucking Gonzales, which pretty much rests my case on the FDL bullshit accusation. And kindly piss off.

  172. 172
    LT says:

    STuck:

    You accused me, directly, of being against going into Libya from the start. When I tell you that’s wrong – you cannot, will not acknowledge it – and even repeat it. To not acknowledge it: cowardly. To repeat it – just kind of psycho.

    And I thought you were leaving.

  173. 173
    LT says:

    Oh, and therefore it is utter bullshit to compare anything ABL has said about this issue with Alberto fucking Gonzales, which pretty much rests my case on the FDL bullshit accusation.

    You are being such a child. That wasn’t meant to pass any fact test, you jackass, it was an insult, pure and simple. Tat’s actually allowed on the internets. And even warranted in many cases, that one included.

  174. 174

    You accused me, directly, of being against going into Libya from the start.

    Really? you, directly? I don’t recall that, so would you mind providing the quote. The only thing I think I called was bringing FDL grade bullshit, or something like that.

  175. 175
    El Cid says:

    I guess I’m more the odd one out in that I think the most significant issues relating to Libya (from Qaddafi’s actions beginning with pro-democracy demonstrations and the civil war to NATO’s / the UNSC’s / the US’ military actions) are not the domestic or international legality of the action.

    And not just because the answers to such questions pretty much conform to the views and aims of the most powerful, particularly on the international level.

  176. 176

    That wasn’t meant to pass any fact test, you jackass, it was an insult, pure and simple.

    LOl, and I’m the dense one. So you admit the insult you levied against ABL was not factual. I would advise you to just shut the fuck up before folks start talking on what a moron you are LT. But unfactual is permitted when spouting FDL grade bullshit, so you could be covered under that section.

  177. 177
    EJ says:

    bourbaki—I still think that this refers to special arrangements outside of Chapter VII Article 42.

    By this logic, there’s no reason for Article 43 to exist. If article 42 empowers the UN security council to deploy member armed forces purely at its own discretion, which is what you seem to be arguing, then what’s the purpose of Article 43?

  178. 178
    LT says:

    Jesus. Can you be real?

    You don’t give a shit about the legalities, and are just using your version of them to discredit obama and the UN action in Libya.

    That’s just for starters.

    Bull fucking shit. They have one singular purpose, DDay, FDL, and the rest of you lying sacks of shit. To bring down the presidency of Obama. They are playing a game, and with peoples lives, cheerleading on the revolts in MENA with prog heroes like Assange, taking the credit for Egypt and Tunisia, until Libya happened and Khadaffy decided to kill the protestors in large numbers. And the world via the UN and US participating acted to stop the slaughter, and you sorry game playing motherfuckers are sitting in your air conditioned bunkers typing out high legal and pol theories to nail Obama with.

    And wow, you’re even more of an asshole on second read.

    And a liar. Ow for you.

  179. 179
    LT says:

    So you admit the insult you levied against ABL was not factual.

    You are fucking hilarious. You goat-fucking zebra-blower. (!NOT MEANT TO BE FACTUAL!)

    I would advise you to just shut the fuck up before folks start talking on what a moron you are LT.

    WOOOOO hoo hoo. That’s just embarrassing.

  180. 180

    Dude, non of those quotes addresses your claim that i

    You accused me, directly, of being against going into Libya from the start.

    I stand by your ultimate goal of bringing down Obama, and don’t give a shit about your denials. I DO think you are a lying sack of shit. All of that is true as to what I think and believe. You can take issue with it, and disagree, but that won’t change me thinking what I think. You will just have to endure that. And maybe think what you want to think about me in turn. Life will go on, the planet won’t slip off its axis.

    But I think it is all kinds of cool, you running around insulting people with unfactual insults. That is just so fucking win./

  181. 181
    LT says:

    Oh god, Stuck. I gotta go. I’ll just say it is nice that you never insult anyone. And especially not with “unfactual insults”:

    I stand by your ultimate goal of bringing down Obama…

    P.S. You sound drunk.

  182. 182

    You are fucking hilarious. You goat-fucking zebra-blower. (!NOT MEANT TO BE FACTUAL!)

    Apples and Oranges. There is no comparison with a generic joke/insult like this, and one that is explicitly attached to an actual fact of history representing a pathological wingnut lawyer describing the Geneva Convention on torture as “quaint” and anything ABL has argued in good faith on the Libya issue. If you think there is a factual comparison, even a little, then you can go fuck a goat, or blow a Zebra. And if you don’t think there is a factual comparison, then you are an idiot/clown. No gray area there.

  183. 183

    P.S. You sound drunk.

    You sound like an idiot. And a complete failure at learning to ignore me. Must be my magnetic fake personality.

  184. 184
    Mart says:

    I call this the coalition of the drilling. USA + England + France = Exxon Mobile + BP + Total. This one sucks eggs (not to mention billions).

  185. 185
    JR says:

    Good grief, got a lot of replies to write…I’ll try to take them in turn.

    @eemom #61: There are several instances where I think the President can commit troops without congressional approval (and one or two where the Guaranty Clause actually compels him to). My thesis is that the way war powers are separated between the two branches in the Constitution, and the way they’re denied to the states, requires us to presume that only Congress can authorize us to begin wars. This would make sense from a fiscal perspective (they have to authorize the funds for raising troops, building and maintaining ships, arming the militia, etc., and they have to make the rules governing captures and prizes, and draw the line between “pirates” and “privateers”), and from a small-d democratic perspective (only the people’s branch should be able to commit the nation to a war). But the real nub of the issue is that–and I cannot stress this enough–only Congress and the voters can hold a President accountable if he doesn’t follow the process. So what practices have been permitted in the past are, in many instances, flatly unconstitutional but simply unpunished. In most instances where the President unconstitutionally launches a military attack, the Congress goes along with it after the fact (the Barbary conflict, Korea, Libya ’86, etc.). Only once that I know of did a house of Congress ever explicitly chastise the President for “unnecessarily and unconstitutionally” beginning a war–and even then, they only did so after the war was all but won, and well over a year after fighting broke out.

    @d. john #65: Thank you!

    @Xenos #160: Simple answer: the text of the WPR is not limited to secret wars, and I tend to only look to intent where the text is vague or ambiguous. But I think the distinction might be that a non-secret war could by definition pass the “inform Congress” requirement of the WPR, the remaining provisions concerning the need for authorization would remain in effect. Part of why it still matters, even if Congress knows the fighting is going on, is that the political/nationalistic calculus about what’s in the US’s best interest changes dramatically once the first shot is fired. As designed, the WPR was supposed to inhibit Presidential adventurism. As implemented, it’s actually had the opposite effect, with Presidents before now mostly trying to limit their military actions to within the 60 day window but still bombing as they see fit before asking Congress for its blessing.

    There’s a terrific passage in the WPR that describes what the Congress thought the President’s inherent war powers entailed. They say that nothing in the bill is intended to affect the constitutional authorities of the two branches, but then list the three only instances where they thought the President could deploy our forces:

    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.

    Nowhere there do they say that these are limited to “secret” wars, and only #3 can be done without prior congressional approval. (This passage, incidentally, is where the Koh/Bauer argument about Libya comes from: they say that “introduc[ing] United States Armed Forces into hostilities” doesn’t include bombings or offshore bombardments. I think that’s a horrible analysis which would most certainly defeat congressional intent, unless you think that bombing Cambodia was just fine until we sent men up the river to actually occupy territory.)

  186. 186
    JR says:

    @martin #78:

    When the founders talked about ‘war’ they talked about the notion at the time of ‘total war’ – committing the entire nation and all of its forces to a war effort.

    Well, not quite. The distinction that actually mattered was between “perfect war” (openly declared war between two states) and “imperfect war” (a lesser state of hostilities that still implicated the war powers). The first war that triggered federal war powers following ratification was actually the Quasi-War with France. The 1800 case Bas v. Tingy was the first time the Court addressed the problem of de facto war, and the Justices all seemed to agree (though each wrote separate opinions, as was the practice of the time) that a formal declaration wasn’t necessary.

    But if words are the representatives of ideas, let me ask by what other word the idea of the relative situation of America and France could be communicated, than by that of hostility, or war? [S]urely Congress could only employ the language of the act of June 13, 1798, towards a nation whom she considered as an enemy.”

    That was Justice Moore’s take, for example.

    But what the Justices all also agreed on was that the hostilities in that “quasi-war” were the product of Congress’s actions. That it was Congress’s laws and words that had created the war-like state of affairs. Here’s Justice Chase:

    “Congress is empowered to declare a general war, or Congress may wage a limited war, limited in place, in objects, and in time. If a general war is declared, its extent and operations are only restricted and regulated by the jus belli, forming a part of the law of nations, but if a partial war is waged, its extent and operation depend on our municipal laws.”

    So they didn’t require “total war” for the war powers (and restrictions thereupon) to be implicated. But they did require–at least in 1800–that the state of hostilities come from Congress, not the President.

  187. 187
    pattonbt says:

    It seems as if everyone agrees there is a gray area around who in the US government can legally enter into war. There are many learned people on both sides who make compelling cases and there is no solid, single answer or precedent to fall back on. Yet many people here who acknowledge that gray-ness seem to be very willing to accept “their side” as enough and dismiss the other side as “unserious”. For me, if it’s gray, then it’s best to act as conservatively as possible and follow the most “non-gray” path to war. If you are taking advantage of a gray area to prosecute war, then maybe it is not a war that should be fought.

    What I find troubling is that I sadly believe many here would not hold these same positions if it wasn’t “their man” at the helm doing the exact same thing (usual caveat necessary – Obot here and he has my vote and money in 2012, Supreme Court too important and Republicans very evil).

    In my opinion, anything that reduces our nations capabilities to legally enter into war (whether a “good” war or a “bad” war) is a good thing. Anything that reduces that gray area to the absolute minimum and makes going to war as hard as humanly fucking possible, would be awesome. I don’t care if it’s “my” (wo)man in the head office or the other guys. And it is a conversation we should be willing to have at any time, regardless of who is running the show.

    The fact we now play semantic games on levels of armed conflict utilizing US military/covert forces in order to circumvent “declaring war” and have removed ourselves so far from the consequences of our militaristic actions is the saddest aspect of who we are as a nation today.

  188. 188
    ABL says:

    Sorry to dump a link and run. Trying to battle some AmeriCorps reporting requirements. ::grumble grumble::

    In any event, this post is worth a read:

    Since the law was enacted, OLC has only directly addressed the Resolution’s constitutionality once: on February 12, 1980, the last year of the Carter Administration. It looked at a number of aspects of the law, including what constituted “United States Armed Forces” for purposes of the law (and determined that military personnel under the direction of the CIA are not covered by the WPA). And it covered what constituted “hostilities” for purposes of the Resolution.

    The Carter OLC looked to the legislative history of the WPA, which revealed that the State Department and the Departments of Defense played significant roles in the legislation. The two departments testified before Congress that the term “hostilities” is “definable in a meaningful way only in the context of an actual set of facts,” but as applied by the Executive, the term included: “a situation in which units of the U.S. armed forces are actively engaged in exchanges of fire with opposing units of hostile forces, and “imminent hostilities” was considered to mean a situation in which there is a serious risk from hostile fire to the safety of United States forces. In our view, neither term necessarily encompasses irregular or infrequent violence which may occur in a particular area.”

    The Carter OLC concluded, “We agree [with State and DOD] that the term “hostilities” should not be read necessarily to include sporadic military or paramilitary attacks on our armed forces stationed abroad. Such situations do not generally involve the full military engagements with which the Resolution is primarily concerned. For the same reason, we also believe that as a general matter the presence of our armed forces in a foreign country whose government comes under attack by ‘guerrilla’ operations would not trigger the reporting provisions of the War Powers Resolution unless our armed forces were assigned to ‘command, coordinate, participate in the movement of, or accompany’ the forces of the host government in operations of such guerrilla operations.”

    Neither of the scenarios described above precisely fits the current circumstances in Libya – sporadic attacks on troops stationed abroad or the presence of armed forces in a foreign country under attack by guerrilla operations unless we were running or significantly assisting the counter-attack operations of the host government. But what is directly on point is OLC’s conclusion that the Resolution was intended to cover full military engagements rather than circumstances where U.S. armed forces are not actively engaged in exchanges of fire with opposing units of hostile forces.

    According to Charlie Savage and Mark Lander’s June 15th story in the New York Times, the report submitted to Congress by the Obama White House concluded that the Resolution was not applicable to Libya because “U.S. operations do not involve sustained fighting or active exchanges of fire with hostile forces, nor do they involve U.S. ground troops.” Now you can see why the White House legal reasoning was coming from – the Obama White House was relying on the Carter OLC opinion.

    my most insincere apologies to those who think it inappropriate to examine and set forth legal arguments in connection with a debate about the legality of this war. and yes, it’s a legal not a moral argument. i wasn’t tackling the morality of it.

    She does not understand it, but it does not give her pause.

    i’m not sure how much more “pause” one expects. i stated that obama is not making this argument. i then state — repeatedly — that i’m not sure if i’m right. and indeed, that is my ultimate point. i don’t know. glenn greenwald sure as shit doesn’t know, despite his style of writing from a position of absolute authority.

    that’s the thing about lawyering. one never knows if one is right until a court rules. and even then, courts get shit wrong all the time. lawyers argue points. that’s what we do. ::shrug::

    in any event, no court will ever rule on this, so all of this is navel-gazing. it just so happens that this brand of navel-gazing is of interest to me.

    aaaaanywhoozle, thanks to those who substantively argued either side without resorting to childish bullshit. there may be some hope for us yet. :)

  189. 189
    ABL says:

    a quick word on the morality:

    someone up-thread accused me of strawmanning it up. i don’t believe i was. a moral inquiry would require looking into, for example, the rape allegations. given the incubator baby hoax, i think it is entirely reasonable to consider that propaganda is often used to sway public opinion. people were making that argument wrt to the woman who burst into the hotel a couple months ago and was whisked away by whomever.

    frankly, i think my post was fairly measured in tone, but whatevs. people are entrenched in their ideological positions. i get that. nonetheless, i, like momsense, find this stuff interesting. it’s even more interesting when you can argue points without, for example, being racist and stupid about it.

  190. 190
    ABL says:

    “So, by arguing a case the President isn’t making, while actually ignoring the one he is, specifically one that disregards the War Powers Act, you sure are showing a determined connection to legal realism! And those fucking hippies, like Yale Professor Bruce Ackerman, who state that it’s a very dangerous precedent and of dubious legality aside are simply unserious “black and white” Obama haters for whom no attention must be paid because they know jack shit about anything.”

    i honestly don’t know what the fuck this is even supposed to mean.

    lucky for me, i don’t give a shit!

  191. 191
    ABL says:

    I said a couple of nights ago that your common-sense view of whether we are engaged in “hostilities” in Libya makes sense to me. The fact remains, however, that we are in a legal gray area because Congress failed to define the term in the War Powers Act. That’s not just my view; stroll on over to lawfare.com and you can hear it from Jack Goldsmith, who probably forgets more about this area of law every day than any of us will ever know. All we can say with any degree of certainty, based on the legislative history, is that Congress probably intended “hostilities” to be broader than “war,” as that term was understood at the time.

    co-sign.

  192. 192
    Joe Buck says:

    Sorry, this argument doesn’t work because the relevant UN resolution didn’t authorize regime change, it was far more limited in scope, and the NATO treaty obligations don’t work either because no ally has been attacked.

    Obama should have gotten authorization. Even Bush did that, despite the UN security council resolution and the allies. Obama himself (the 2007 or 2008 version) could have told you that, and even could have segued into his oft-repeated claim that he was running to restore the Constitution.

  193. 193
    ABL says:

    The shittiest part of this post and so many comments here on several posts on the subject is the “Oh how those whiners whine about something so trivial as legality!”

    unsurprisingly, your reductionist crap misses the point.

  194. 194
    Danny says:

    @Joe Buck

    Sorry, this argument doesn’t work because the relevant UN resolution didn’t authorize regime change, it was far more limited in scope, and the NATO treaty obligations don’t work either because no ally has been attacked.

    To get any traction with that you’d have to show that the U.S. (specifically) is involved in effecting regime change in Libya by force. Not France or the UK; the U.S.

    Good luck with that. (Yes, we all know that the burden of proof should never fall on DFHs, only on “the man”)

    Obama should have gotten authorization. Even Bush did that, despite the UN security council resolution and the allies.

    Bush went before the american people and lied about an imminent threat, that’s how he got authorization. That’s how presidents usually got authorization – in Iraq II, in Vietnam and so on. By lying to their subjects.

    This president however went before the public and was upfront that this was neither about a threat to the U.S. nor within our immediate national interest, but rather about preventing a potential massacre and using our military might in the middle east when we for once was asked to do so instead of deciding unilaterally to take action for our own reasons. Earning some real credibility with the muslim public.

    Of course he’s gonna catch flack for doing the right thing while being transparent and treating the citizenry like adults. It’s not easy putting the international community back together again after Dubyas shenanigans – not with a constituency of dead ender New Leftists still in the party, relitigating the Vietnam war for 40 years running…

  195. 195
    Johannes says:

    @MomSense: No, you weren’t snarling; quite the contrary. And I appreciate your points. The notion that I was trying to hide the text I linked to, and some of the other frothing (not all related to our corner of the discussion) is what I was referring to. Plus, how often do I get to quote a tagline?

  196. 196
    Xenos says:

    JR- thank you for your clarifications. If there is not much that is unclear or unresolved in this law then, of course, congressional intent does not come into it.

    Momsense- I was speculating along the same lines when this came up a few days ago, although not nearly as well thought out and well written as your statements here. I noticed with some amusement that some similar arguments were raised by the nutcases fine gentlemen at Volokh.com. Unfortunately, though, the question of the WPR applying to a supporting role with NATO has not been raised by the administration. So it is a bit of a stretch to use it here – rightly or wrongly, Obama seems not to think it relevant.

  197. 197
    Tuttle says:

    War-like thing?

    I bet that causes a lot of death-like things, carnage-like things, rape-like things and just generally unpleasant-like things.

  198. 198
    Allan says:

    I am guilty of giving Obama more benefit of the doubt than I gave GWB. I am guilty of believing that Obama is morally and intellectually superior to GWB. I am guilty of believing that Obama better understands the military and political intelligence that is shared with him, asks tougher questions of his advisors who advocate for intervention, and listens more respectfully to those who advocate against it.

    So sue me.

  199. 199
    someguy says:

    This is a stellar post. What is absolutely clear is that this (it’s not a war so don’t call it that) limited engagement is completely permissible because Obama is our guy. Any questions to the contrary are providing objective support to the enemies of our country, and to Republicans. Same difference really

  200. 200
    Danny says:

    @Tuttle, @someguy

    I got this funny conception that the DFH/FDL crowd never contributes more than one-liners, sniping and sarcasm, presumably because they consider themselves right a priori… Mind straightening me out?

  201. 201
    EJ says:

    i’m not sure how much more “pause” one expects. i stated that obama is not making this argument. i then state—repeatedly—that i’m not sure if i’m right. and indeed, that is my ultimate point. i don’t know. glenn greenwald sure as shit doesn’t know, despite his style of writing from a position of absolute authority.

    Experts disagree! Who can know? Both sides do it.

Trackbacks & Pingbacks

  1. […] say this in the context of a counter-response to the response here to people regarding the war in Libya, and U.S. involvement in it, as both wrong and illegal.  In […]

Comments are closed.