Obama, Qaddafi, and the power to make war **2nd UPDATE: Salon attacks

UPDATE 3: Don’t tell Salon … 7 in 10 Americans support what we’re doing in Libya.

UPDATE 2: Salon’s Michael Lind issues a legalese-laden broadside against John Whitehouse that basically boils down to “ignore the parts of Article 42 that don’t make Obama a criminal.”

And John Whitehouse responds.

Lind’s analysis is one I’ve literally not read anywhere, frankly, and it essentially would mean everything from the Korean war to Grenada to Kosovo to Rwanda was unconstitutional, meaning Dennis Kucinich is going to have to climb into a tiny time machine and impeach a half dozen past presidents, living and dead. Lind even argues that Article 43 of the U.N. charter (the “dead letter”) was based on the assumption that the U.N. would have its own army. That makes no sense to me. For starters, there’s the plain wording of the article:

All Members of the United Nations, in order to contribute to the maintenance of international peace and security, undertake to make available to the Security Council, on its call and in accordance with a special agreement or agreements, armed forces, assistance, and facilities, including rights of passage, necessary for the purpose of maintaining international peace and security.

… if the U.N. was to have its “own army,” why would member nations need to “make available to the Security Council”… “armed forces”…? Second, when you consider that following the ratification of the treaty, one of the U.N.’s first Article 42 acts was this:

27 June 1950

Security Council, acting in the absence of the Soviet Union, calls on Member States to help southern part of Korea repel invasion from the north. The Korean Armistice Agreement is signed on 27 July 1953 by the UN Command and the Chinese-North Korean Command.

No “army of its own,” that…

… And when you consider that the United States Congress in December, 1945 enacted a law codifying U.S. participation in United Nations actions, explicitly rejecting the idea of requiring prior Congressional approval for the president to commit U.S. forces to a U.N. action (as spelled out in Whitehouse’s post and later in this post.)

Meanwhile, the 180 degree wraparound from the far left to the full mooner right is accomplished, as the Moonie Washington Times jumps aboard the Kucinich/Greenwald express, this time, arguing the Libya attack is illegal because the U.S. is acting at the behest of the U.N.

To the rescue: Dave von Ebers on the civilized way for liberals to debate Libya.

UPDATE 1: Dennis Kucinich’s full flight into impeachment hysteria aside, the debate over whether the president has the authority to commit U.S. armed forces in response to a United Nations resolution has been fired up again. And as often happens in these instances, history provides the answer, though perhaps not the one liberals and Libertarians want to hear.

Let’s take a trip back to December 4, 1945. Hitler was dead after swallowing a cyanide capsule in his bunker. Harry Truman was the MAN. And it had been five months since the United States Senate ratified the United Nations charter. So what happened on that day?

December 4, 1945 – Senate passed (65-7) legislation to give the United States full, active participation in the United Nations Organization in accordance with the San Francisco Charter; 1950 – the Security Council approved a peacekeeping force for Korea; first time a UN peacekeeping force was committed to an armed conflict.

The Senate vote was not without controversy, over the very thing Kucinich and other Democrats, including several Congressional Black Caucus members, are in a lather over regarding Libya. Here’s how the New York Times reported it for their December 4, 1945 evening edition:

UNO Bill Approved By Senate, 65 to 7, With One Change

Right to Confirm or Reject Appointments to General Assembly Is Retained
OTHER MOVES CRUSHED

Wheeler, Willis Overwhelmed in Assault on Powers of World Body to Keep Peace

By C. P. TRUSSELL
Special to THE NEW YORK TIMES

Washington, Dec. 4–The Senate passed by a 65-to-7 vote this evening the legislation to give the United States full, active participation in the United Nations Organization in accordance with the San Francisco Charter that it ratified, 89 to 2, last July.

Voting for the implementing measure, which now goes to the House, were forty-one Democrats, twenty-three Republicans and one Progressive. Opposing its passage were six Republicans– Senators Langer of North Dakota, Moore of Oklahoma, Revercomb of West Virginia, Shipstead of Minnesota, Taft of Ohio and Wherry of Nebraska, the minority whip–and one Democrat, Senator Wheeler of Montana. Senators Langer and Shipstead were the two who voted against ratification of the Charter.

Passage came after seven days of the Senate contest, which reached its final show-down stage in late afternoon as Senators Wheeler and Willis, Republican, of Indiana, sought to require the President to obtain specific Congressional authorization before he could make armed forces available to the UNO Security Council to halt an aggression or to maintain peace.

The Wheeler amendment was defeated 65-9. And while the United Nations Participatory Act did indeed include provisions for Congress to approve, via joint resolution, the “size, readiness and general location of forces” to be made available to the U.N. Security Council to carry out its writs, as bloggerJohn Whitehouse points out, the relevant section of the UNPA also states:

 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…

… which was precisely the outcome of the rejection of Wheeler’s amendment.

During the debate over the Iraq war, the question of the president’s war powers became an issue (Kucinich wanted Bush impeached, too, though interestingly enough, even when Democrats took back the House in 2006, they, including House Judiciary Chair John Conyers, didn’t even bother to try. In fact, then-incoming Speaker Nancy Pelosi took impeachment off the table, even in the face of mounting evidence that the Bush administration misled Congress to get its approval to attack Iraq.)

At the time of the Iraq war debate, the failed Wheeler amendment became a topic for discussion, mostly resulting in the same conclusion:

When Congress overwhelmingly approved the 1945 U.N. Participation Act (UNPA), the unanimous House report explained that the ratification of the U.N. Charter “resulted in the vesting in the executive branch of the power and obligation to fulfill the commitments assumed by the United States thereunder.” Quoting the unanimous Senate report urging charter ratification, the House report added that the use of U.S. armed forces to enforce the charter “would not be an act of war but would be international action for the preservation of the peace,” and thus “the provisions of the charter do not affect the exclusive power of the Congress to declare war.”

The main legal objection to the 2003 invasion of Iraq was not that George W. Bush lacked Congressional authority to act. The facile 107th Congress — Democrats included — gave him the blanket authority to damn near invade Sweden if he wanted to. Bush’s problem is that he lacked the first component triggering presidential authority to carry out a U.N. resolution — a U.N. resolution — specifically, one authorizing the use of lethal force against Iraq.

Bush went rogue in 2003, not against the Congress, which after 9/11 was as supple and pliant as a silk stocking, but aganst the U.N. itself, since the resolution of disapproval he basically bribed, bullied, lied and spied out of the Security Council explicitly did NOT call for force to be used against Saddam Hussein — who by the way, was already subject to a no fly zone, to protect the Kurds in the northern part of Iraq.

ORIGINAL POST:The left is in a lather (again) over President Obama’s actions, this time in Libya. And while there is honest discomfort out there with this third military action in the Muslim world (which I share, by the way) some of the criticism is just plain dishonest (and some, including from members of Congress, borders on hysteria.) Specifically, I’m talking about the charge, thrown around as freely as some liberals toss around the word “torture” these days, that the U.S. participation in the United Nations-sanctioned military effort to brush back Muommar Qaddafi’s troops, tanks, planes and mercenaries isn’t just something they don’t like or are uncomfortable with — it’s a violation of the U.S. constitution.

I’ve posted on this before, but it’s worth repeating that the U.S. action in Libya is distinguished from, say, the 2003 invasion and occupation of Iraq, by two things. First, it is not a bilateral war between the U.S. and Libya (or a trilateral one involving America’s favorite war sidekick, the British.) Second, the action in Libya is not just sanctioned by the United Nations, it is at the U.N.’s behest.

The Security Council this past week passed a resolution authorizing U.N. nations to take “all necessary measures” to repel Qaddafi’s forces, and to prevent a humanitarian disaster. The resolution reads in part:

Acting under Chapter VII of the Charter of the United Nations,

1. Demands the immediate establishment of a cease-fire and a complete end to violence and all attacks against, and abuses of, civilians;

2. Stresses the need to intensify efforts to find a solution to the crisis which responds to the legitimate demands of the Libyan people and notes the decisions of the Secretary-General to send his Special Envoy to Libya and of the Peace and Security Council of the African Union to send its ad hoc High Level Committee to Libya with the aim of facilitating dialogue to lead to the political reforms necessary to find a peaceful and sustainable solution;

3. Demands that the Libyan authorities comply with their obligations under international law, including international humanitarian law, human rights and refugee law and take all measures to protect civilians and meet their basic needs, and to ensure the rapid and unimpeded passage of humanitarian assistance;

Protection of civilians

4. Authorizes Member States that have notified the Secretary-General, acting nationally or through regional organizations or arrangements, and acting in cooperation with the Secretary-General, to take all necessary measures, notwithstanding paragraph 9 of resolution 1970 (2011), to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya, including Benghazi, while excluding a foreign occupation force of any form on any part of Libyan territory, and requests the Member States concerned to inform the Secretary-General immediately of the measures they take pursuant to the authorization conferred by this paragraph which shall be immediately reported to the Security Council;

5. Recognizes the important role of the League of Arab States in matters relating to the maintenance of international peace and security in the region, and bearing in mind Chapter VIII of the Charter of the United Nations, requests the Member States of the League of Arab States to cooperate with other Member States in the implementation of paragraph 4;

No fly zone
6. Decides to establish a ban on all flights in the airspace of the Libyan Arab Jamahiriya in order to help protect civilians;

7. Decides further that the ban imposed by paragraph 6 shall not apply to flights whose sole purpose is humanitarian, such as delivering or facilitating the delivery of assistance, including medical supplies, food, humanitarian workers and related assistance, or evacuating foreign nationals from the Libyan Arab Jamahiriya, nor shall it apply to flights authorised by paragraphs 4 or 8, nor other flights which are deemed necessary by States acting under the authorisation conferred in paragraph 8 to be for the benefit of the Libyan people, and that these flights shall be coordinated with any mechanism established under paragraph 8;

8. Authorizes Member States that have notified the Secretary-General and the Secretary-General of the League of Arab States, acting nationally or through regional organizations or arrangements, to take all necessary measures to enforce compliance with the ban on flights imposed by paragraph 6 above, as necessary, and requests the States concerned in cooperation with the League of Arab States to coordinate closely with the Secretary General on the measures they are taking to implement this ban, including by establishing an appropriate mechanism for implementing the provisions of paragraphs 6 and 7 above,

Read the rest here.

As Shoq pointed out in this post, the resolution triggered a series of obligations on the part of member nations, including the U.S., who have the capability to see the resolution carried out:

… Because of our well over half-century old agreement with the United Nations which requires such a commitment of armed forces from its Member nations when requested by the Security Council under Chapter XVII of its charter. While a number of pertinent Articles exist in that chapter, the meat and potatoes of the chapter, insofar as Member’s armed forces are concerned, is this one:

Chapter VII, Article 42 reads (in its entirety):

Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.

Source: United Nations Charter

The one thing I’d edit in Shoq’s statement is the word “required.” I’m not a lawyer, but I’m pretty sure the U.N. doesn’t have that kind of power (otherwise, for instance, there would be no Israeli/Palestinian conflict, because the myriad resolutions on that matter would be in force.) But the charter does confer obligations on the members of the Security Council, particularly those who vote to approve a given resolution. In that sensse, China and Russia — who were among the five council members who abstained from the resolution — not committing troops or resources to enforce the Libya resolution strikes me as irrelevant. Russia always opposed the intervention and still does. Ditto the Chinese government. But the U.S., as one of the council members that sought the resolution, surely has an obligation to see it implemented.

So how does a U.N. request for military assistance to enforce its resolutions impact the American president, and more to the point, what does U.S. law allow the president to do in response? Shoq continues:

…the UN charter’s Article 43 also requires that each Member nation ratify this mandate according to their constitutional processes. This has been done by an action of U.S. Congress, and is reflected in:

US CODE > TITLE 22 > CHAPTER 7 > SUBCHAPTER XVI >  287d

The current edition of the U.S. code was published in 2006.

Use of armed forces; limitations — 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.

Source: Cornell School of Law

The French were the first to actually deploy force to push back the Qaddafi regime. And while the U.S. fired the first cruise missiles, and has taken a lead role in the early stages, that is explicitly a temporary condition, necessitated by America’s superior military readiness. The Obama administration has expressly ruled out ground troops – meaning an invasion – and has also taken “regime change” (a la Iraq) off the table.

Does enforcing a “no fly zone” entail essentially waging war on the government and military assets of Libya? Clearly. Defense Secretary Gates said as much in the heady days when John McCain was egging the administration on to declare a unilateral, U.S.-only no fly zone (which would have been a disastrous, reckless policy had President Obama been crazy enough to listen to his vanquished foe from 2008.) And Gates continues to be the guy with the biggest flashing yellow caution sign when it comes to LIbya.  But is this an American, bilateral war on Libya? No. It’s also not illegal, either under international law (since international law, via the U.N., called for it,) or under U.S. law.

For an extra look-see, let’s have a look at the War Powers Resolution of 1973, which presidents tend to loathe, but which anti-war advocates from liberals to Paulites tend to cite as the major limiting authority on any president’s ability to commit U.S. troops (though a brief glance through U.S. history over the last 38 years suggests that if it was intended to limit presidential authority, it’s not working.)

The War Powers Resolution (not really an “Act” since it was a joint resolution, not a bill, though it has the same legal effect as a bill passed into law) was passed in the wake of the Vietnam war (despite the fact that Congress was partially culpable for Vietnam by getting fooled into the Gulf of Tonkin Resolution.) The idea was to at least get presidents to report to Congress if they commit U.S. forces anywhere where hostilities could escalate into war, and gives Congress the power to stop such military intervention if it deems necessary, and reasserts the Article 2 power of Congress to formally declare war. So what does the resolution provide? Here are the relevant sections:

PURPOSE AND POLICY

SEC. 2. (a)
It is the purpose of this joint resolution to fulfill the intent of the framers of the Constitution of the United States and insure that the collective judgement of both the Congress and the President will apply to the introduction of United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicate by the circumstances, and to the continued use of such forces in hostilities or in such situations.
SEC. 2. (b)
Under article I, section 8, of the Constitution, it is specifically provided that the Congress shall have the power to make all laws necessary and proper for carrying into execution, not only its own powers but also all other powers vested by the Constitution in the Government of the United States, or in any department or officer thereof.
SEC. 2. (c)
The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.

CONSULTATION

SEC. 3.
The President in every possible instance shall consult with Congress before introducing United States Armed Forces into hostilities or into situation where imminent involvement in hostilities is clearly indicated by the circumstances, and after every such introduction shall consult regularly with the Congress until United States Armed Forces are no longer engaged in hostilities or have been removed from such situations.

REPORTING

Sec. 4. (a)
In the absence of a declaration of war, in any case in which United States Armed Forces are introduced–
(1)
into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances;
(2)
into the territory, airspace or waters of a foreign nation, while equipped for combat, except for deployments which relate solely to supply, replacement, repair, or training of such forces; or
(3)
(A)
the circumstances necessitating the introduction of United States Armed Forces;
(B)
the constitutional and legislative authority under which such introduction took place; and
(C)
the estimated scope and duration of the hostilities or involvement.
Sec. 4. (b)
The President shall provide such other information as the Congress may request in the fulfillment of its constitutional responsibilities with respect to committing the Nation to war and to the use of United States Armed Forces abroad.
Sec. 4. (c)
Whenever United States Armed Forces are introduced into hostilities or into any situation described in subsection (a) of this section, the President shall, so long as such armed forces continue to be engaged in such hostilities or situation, report to the Congress periodically on the status of such hostilities or situation as well as on the scope and duration of such hostilities or situation, but in no event shall he report to the Congress less often than once every six months.

In the case of Libya, the statutory authorization would seem to reside in the aforementioned U.S. code obligating the U.S. to the U.N. But even beyond that, the War Powers Resolution assumes the president can and will commit U.S. forces without an explicit Congressional declaration of war, and binds the commander in chief to only one thing: reporting to Congress in a timely manner. So how has the resolution been employed over the years?

Per the Library of Congress:

U.S. Presidents have consistently taken the position that the War Powers Resolution is an unconstitutional infringement upon the power of the executive branch. As a result, the Resolution has been the subject of controversy since its enactment, and is a recurring issue due to the ongoing worldwide commitment of U.S. armed forces. Presidents have submitted a total of over 120 reports to Congress pursuant to the Resolution. Some examples of the Resolution’s effect on the deployment of U.S. armed forces include:

1975: President Ford submitted a report to Congress as a result of his order to the U.S. armed forces to retake the Mayaguez, a U.S. merchant vessel which had been seized by Cambodia. This report is the only report to have cited Section 4(a)(1) (50 USC Sec. 1543(a)(1)) of the Resolution, triggering the 60-day time limit; however the operation was completed before 60 days had expired.

1981: President Reagan deployed a number of U.S. military advisors to El Salvador but submitted no report to Congress. Members of Congress filed a federal lawsuit in an attempt to force compliance with the Resolution, but the U.S. District Court hearing the suit declined to become involved in what the judge saw as a political question, namely whether U.S. forces were indeed involved in hostilities.

1982-83: President Reagan sent a force of Marines to Lebanon to participate in peacekeeping efforts in that country; while he did submit three reports to Congress under the Resolution, he did not cite Section 4(a)(1), and thus did not trigger the 60 day time limit. Over time the Marines came under increasing enemy fire and there were calls for withdrawal of U.S. forces. Congress, as part of a compromise with the President, passed Public Law 98-119 in October 1983 authorizing U.S. troops to remain in Lebanon for 18 months. This resolution was signed by the President, and was the first time a President had signed legislation invoking the War Powers Resolution.

1990-91: President George H.W. Bush sent several reports to Congress regarding the buildup of forces in Operation Desert Shield. President Bush took the position that he did not need “authority” from Congress to carry out the United Nations resolutions which authorized member states to use “all necessary means” to eject Iraq from Kuwait; however he did ask for Congressional “support” of U.S. operations in the Persian Gulf. Congress passed, and the President signed, Public Law 102-1 authorizing the President to use force against Iraq if the President reported that diplomatic efforts had failed. President Bush did so report, and initiated Operation Desert Storm.

1993-99: President Clinton utilized United States armed forces in various operations, such as air strikes and the deployment of peacekeeping forces, in the former Yugoslavia, especially Bosnia and Kosovo. These operations were pursuant to United Nations Security Council resolutions and were conducted in conjunction with other member states of NATO. During this time the President made a number of reports to Congress “consistent with the War Powers Resolution” regarding the use of U.S. forces, but never cited Section 4(a)(1), and thus did not trigger the 60 day time limit. Opinion in Congress was divided and many legislative measures regarding the use of these forces were defeated without becoming law. Frustrated that Congress was unable to pass legislation challenging the President’s actions, Representative Tom Campbell and other Members of the House filed suit in the Federal District Court for the District of Columbia against the President, charging that he had violated the War Powers Resolution, especially since 60 days had elapsed since the start of military operations in Kosovo. The President noted that he considered the War Powers Resolution constitutionally defective. The court ruled in favor of the President, holding that the Members lacked legal standing to bring the suit; this decision was affirmed by the U.S. Court of Appeals for the District of Columbia. See Campbell v. Clinton, 203 F.3d 19 (D.C. Cir. 2000). The U.S. Supreme Court refused to hear an appeal from this decision, in effect letting it stand.

2001: In the wake of the terrorist attacks on the World Trade Center and the Pentagon, Congress passed Public Law 107-40, authorizing President George W. Bush to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.” For the first time, “organizations and persons” are specified in a Congressional authorization to use force pursuant to the War Powers Resolution, rather than just nations.

2002: Congress authorized President George W. Bush to use force against Iraq, pursuant to the War Powers Resolution, in Public Law 107-243.

And that’s not to mention the myriad other commitments of U.S. forces into armed conflict by various presidents, whether in Grenada or Rwanda or Panama etc.

So on the question of whether we do indeed face a “constitutional crisis” over Libya, signs point to absolutely not. The House speaker, John Boehner, has called on President Obama to duly report to Congress in a timely manner as to the mission and end game in Libya, as is his duty under the War Powers Resolution. Congress should, in general, jealously guard its prerogatives against the constant encroachment of executive power. This country would be a dictatorship in a hot second if we had more Congresses like the shameful 107th, which let George W. Bush wipe his backside with the constitution by rushing through the PATRIOT Act, the Kafkaesque “Homeland Security” Act, the Iraq war authorization and two giant, ugly tax cuts, with nery more than a purr from sycophants like Pat Roberts of Kansas, and even some Democrats.

Congress should always stand up for itself and for the constitution.

But in the case of Libya, it’s hard to see what they’d fight the White House about.

To re-rack yet again, as Peter Bergen pointed out on CNN Sunday night, and in this post to the cable outlet’s website, Iraq 2003 and libya 2011 are substantively different: 

… the military intervention that President Obama authorized against Libya on Saturday — eight years to the day after President George W. Bush announced the commencement of “Operation Iraqi Freedom” — is a quite different operation than the 2003 invasion of Iraq.

Beyond the obvious difference that Obama has not authorized the use of U.S. ground forces in Libya, there are several other differences to consider:

First, the Obama administration was handed a gift by the Arab League, which in its more than six-decade history has garnered a well-earned reputation as a feckless talking shop, but unusually took a stand one week ago by endorsing a no-fly zone over Libya.

That endorsement put the Arab League way out in front of the Obama administration, which was then dithering about whether to do anything of substance to help the rebels fighting Gadhafi.

The unexpected action by the Arab League gave the administration the impetus and diplomatic cover to then go to the United Nations Security Council to secure a broad resolution endorsing not only a no-fly zone, but also allowing member states to “take all necessary measures” to protect civilians in Libya.

This U.N. resolution is reminiscent of the one that President George H.W. Bush secured in November 1990, which gave Iraq six weeks to withdraw from Kuwait following Hussein’s invasion of that country. The U.N. resolution in 1990 similarly empowered states to use “all necessary means” to force Iraq out of Kuwait if Hussein ignored the deadline.

The similarities do not end there. The coalition that massed to drive Hussein out of Kuwait involved significant forces from major Muslim countries such as Saudi Arabia and Pakistan. So too the Libyan no-fly zone will be enforced by Qatar, along with western powers such as France and the U.K.

This is all quite in contrast to George W. Bush’s ineffectual attempts to gather international support for the invasion of Iraq in 2003. There was no U.N. resolution explicitly authorizing the use of military force against Hussein, and no Muslim countries participated in the American invasion and occupation of Iraq.

Indeed, before the March 2003 invasion of Iraq, the Turkish parliament voted against allowing American troops passage across Turkey to invade northern Iraq, which put a wrench in U.S. military planning.

Underlining the fact that the Iraq War was widely viewed as illegitimate by Muslim countries, the same year that Turkey voted against allowing American soldiers to use its soil to attack Iraq, Turkish soldiers were also leading the International Security Assistance Force helping to keep the peace in post-Taliban Afghanistan, a military operation that was also authorized by the United Nations and was not seen as illegitimate by much of the Muslim world.

But try telling that to Michael Moore, who’s busy feeding red meat to the Fox News crowd from his Twitter feed; and even more strangely, siding with the Qaddafis by implying that the Libyan rebels are al-Qaida-style terrorists fresh off missions in Iraq to kill American troops:

Michael Moore @MMFlint Michael Moore

They won’t report THIS in the MSM: http://j.mp/fdaj9T Are some of the rebels in Libya back home after killing our soldiers in Iraq?

14 hours ago via Twitter for BlackBerry®  Favorite  Retweet  Reply

… Which, even if it were true, would provide President Obama with even stronger justification to deploy American force in Libya, since the blanket Iraq resolution passed by Congress essentially allows the president to pursue the “war on terror” anywhere, anytime, anyhow.

Now that’s what I call ironic.

To repeat, there are good reasons to be wary of what the U.S. is doing in Libya. Very smart people, including the current defense secretary, urged caution on intervening militarily to create a no fly zone to box Qaddafi in. The West seems awfully eager to get a piece of the Jasmine Revolution, which just about everyone agres would be better accomplished by people power, not western military power. And the history of no fly zones as an anti-dictatorial tactic is mixed at best. There’s even plenty of good reason to debate the shift in war-making and other powers away from the first branch of government — Congress — to the exective branch over the decades.

But to suggest that what the president is doing is illegal pushes Obama derangement by the left to an absurd extreme. 

There is such a thing as honest debate, and before Barack Obama came along, liberals used to place it at a premium.

BTW, for a good look at that honest debate, head on over to ForeignPolicy.com.

Also:

Foreign Policy: Libya: a problem from hell

CNN: Missiles damage Qaddafi compound

WaPo: Destruction and hope

WaPo: Questions raised about U.S. goals

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17 Responses to Obama, Qaddafi, and the power to make war **2nd UPDATE: Salon attacks

  1. Flo says:

    Well done; thanks for putting that together.
    They can mock the U.N. from the right, and from the left suggest the War Powers Act is unconstitutional, but the fact is the U.N. and War Powers Act are real.

  2. Alli says:

    Excellent, excellent. I’m bookmarking this post.

  3. Anna Luc says:

    This is just a tremendously thorough examination of the modern presidential ability to use military force. Thank you. After recent US history in Afghanistan and the lies of Bush-43, caution and questions about any military action by the US are every citizens duty. President Obama has the legal authority to act. Let us hope this UN action will give the rebels the time and space to fight back.

  4. Rupert says:

    If a few Tomahawk missiles cost about as much as current federal funding of NPR, how come the tea partiers aren’t out in the streets protesting this war??

  5. Pingback: BREAKING: Libya Legal According to 1945 Congress (Updated) « Another War of Jenkins' Ear

  6. Pingback: Salon’s Michael Lind Makes the Case for Healthcare Being Unconstitutional « Another War of Jenkins' Ear

  7. Well that’s all very nice cut-and-pasting pseudo-historical arguments for a Presidency that can do no wrong, but it doesn’t address the fundamental issues.
    1.) Not even so much as a consultation of Congress before engaging in acts of war regardless of whether this has been done before or not. Historical precedence doesn’t make it right. and
    2.) What are the political motivations behind this? Oh please, don’t tell me about the humanity of it all…
    How about taking a look at the modern history of Libya and where it’s oil has been going. This discussion should be about more than defending Obama and insulting his critics. It should be about what the hell we’re doing and why we’re doing it.

  8. Rupert says:

    Why consult Congress? McCain, Lieberman, Graham were crying for a no fly zone 2 weeks ago, even without UN involvement.

  9. JReid says:

    With all due respect, Stephen, there’s nothing “pseudo-historical” about existing law. The law binding the United States to the United Nations has not, to my knowledge, been repealed, and thus what happened in 1945 is highly relevant today.

    Also, the idea that there was “not so much as a consultation with Congress” is false, since the president and his team did indeed consult with members of Congress to the extent possible while the president was out of the country. Perhaps he could have flown the entire Congress to Brazil, but, well, budgets and all…

    And third, the War Powers Resolution requires only that the president inform Congress of his intent to adhere to a UN Security Council request within 48 hours, and then fully consult with Congress within 60 days. It has been, what, three days?

    I realize that those of you who hate this president want very badly to find wrongdoing in everything he does. But snark isn’t argument. And “it’s about the oil” is only relevant to the people who get most of Libya’s oil. And that would be the Europeans. Last I checked, they’re part of this mission too.

    Just sayin.

  10. Flo says:

    Sorry. Congress is not in session this week. Got to wait til next week to help the Libyans.

  11. Glenn says:

    The problem with this “analysis” is it forgets one thing, the War Powers Resolution is also a VIOLATION of the Constitution. Thus this entire page is a waste of space on the world wide web. Obama has an Unconstitutional war on his hands…and should be impeached for this reason. http://www.countercurrents.org/boldin220311.htm

  12. Rupert says:

    Sure Glenn; let us know when the federal courts say so.
    Congress would be wise to review the War Powers Act etc. and put in place a new process. But for now, this “analysis” stands.

  13. Christopher Sharples says:

    Excuse the length of this comment but I have attempted to digest the substance of the debate so far in order to form a more complete rebuttal.

    1. INTERNATIONAL LAW

    Article 43 is not a de jure, necessary condition for Article 42 action under the UN Charter. If anyone is arguing that then I think that they are off the mark.

    What you miss is that Article 43 was intended to be a de facto prerequisite.

    Hence, Article 43.3 instructs that ‘the…[special] agreements shall be negotiated as soon as possible on the initiative of the Security Council.’

    Which is why Article 44 sets out the enforcement scenario in this way: ‘When the Security Council has decided to use force [Article 42 action!] it shall, before calling upon a Member not represented on it to provide armed forces in fulfilment of the obligations assumed under Article 43…’

    As such, I cannot agree that there was an intended distinction between ‘special’ Article 42 actions, and what you call Article 43 ‘actions’.

    By the latter I assume that you think that ‘providing’ armed forces to fulfil Article 43 obligations referred to a radically different sort of UN ‘command’ or operation. I don’t think this is what was intended, or what the Charter says prima facie.

    Nevertheless, if forces are provided on an ad hoc basis for peace enforcement operations by member states, or regional bodies like NATO or a broadly Western alliance authorized to take on the responsibility, then Article 43 is not an obstacle, because compliance with Article 42 actions is technically voluntary.

    I do not dispute that this leaves the UN in a serious quandary if it ever tries to compel a member state into fulfilling its obligations. Because no ‘special agreements’ exist, I doubt they could do it.

    Which, incidentally, is probably one of the main reasons why no member state has ever ratified a ‘special agreement’ (wink, wink).

    So, we should all be able to agree that the Libyan intervention technically complies with this bit of international law.

    2. DOMESTIC LAW

    The problem is that USC 271, like the UN Charter, was written in 1945. So, it is based on the same Article 42-43 assumptions as the Charter.

    US domestic law is written on the basis that such Article 43 ‘special agreements’, authorized by Congress, will exist prior to any peace enforcement actions under Article 42.

    So, we get the ‘and pursuant to’ phrase that causes your argument so many problems.

    Of course, the President is given the discretion to deploy the forces agreed to under the ‘special agreement’, when called on by the United Nations Security Council – but no more.

    If such a ‘special agreement’ doesn’t exist, as is the case 60 years later, then the President does not have prior Congressional authorization.

    The UN Charter, as a treaty, does not impose an obligation on the United States to implement Article 42 resolutions because there is no ‘special agreement’ in place. Instead, US support has been, and is given on an essentially voluntary, ad hoc basis.

    This ad hoc compliance requires Congressional authorization under US law, because the Congress has never consented to a ‘special agreement’ by Joint Resolution or Act.

    I think the intent is quite easy to decipher, especially if you look at the bit of the UN Participation Act relating to Article 41 actions. Here, the President is peremptorily given wide ranging (almost carte blanche) authorization to comply with obligations on sanctions etc. without further Congressional authorization.

    This same discretion is not afforded to military action – here a ‘special agreement’ is assumed.

    I believe that there are two other main issues:

    i) The 1945 House report you cite claims that enforcement actions aren’t equivalent to a declaration of ‘war’, and so don’t need authorization as such.

    Firstly, I wouldn’t place so much weight on the opinion of Congressional committees on the breadth of executive power at the end of the largest wartime mobilisation in history. They might be inclined to exaggerate Executive power beyond what is sensible.

    More interestingly, I think that there may even have been a self-interested motive behind minimising the actual similarity to a declaration of war. If a ‘special agreement’ was authorized, then claiming that this authorized ‘war’ with any nation targeted by the UN Security Council in the future would look like an abrogation of Congress’ sole right to declare war on behalf of the United States. So, a ‘special agreement’ (which they no doubt envisioned) would be more convenient if it didn’t authorize ‘war’, but instead some euphemism like ‘police action’ (as President Truman in fact claimed in relation to Korea).

    (The comments of Dr. Luck – now special advisor to Ban Ki-moon – and the late Eugene Rostow from this 1994 hearing are in fact much more interesting. Luck’s arguments on page 77 seem to support my general position. Rostow calls Article 43 a ‘dead letter’ and seems to prefer that Congress ‘permit the sleeping dogs of section 6 of the 1945 Act to slumber in peace’ than upset the ambiguous status quo that has served us oh-so-well – page 99)

    Here, I think the sentiment behind US 271 is revealing. Interestingly, if the UN Charter authorized a war with another country it would only be ratified by the US Senate, because the UN Charter is a treaty.

    However, US 271 places a different hurdle in front of any ‘special agreement’ – a Joint Resolution or Act of Congress – the same as that broadly required for a declaration or authorization of war. I doubt that this is a coincidence.

    ii) The fact that the War Powers Resolution of 1973 has been violated in the past is no mitigation. Regardless of whether Presidents past have regarded it as unconstitutional, and the fact that it is surely unenforceable in the Courts, the Congress has not given specific statutory authorization for this military action.

    I believe that this analysis lends support to my conclusion: http://www.ohioverticals.com/blogs/akron_law_cafe/2011/03/the-constitutionality-of-military-action-against-libya/

    3. CONCLUSION

    I am compelled to conclude that President Obama’s actions in fact violate the War Powers Resolution of 1973. The intervention in Libya is legal under international law, but should have received Congressional authorization. Treaty obligations under the UN Charter do not provide for specific statutory authorization, and they do not obligate the United States to enforce any resolution of the Security Council.

    This is, however, not an unusual phenomenon. Like many of his predecessors, the President is unlikely to be impeached as a result.

    http://en.wikipedia.org/wiki/Declaration_of_war_by_the_United_States#Declarations_of_war

    Although I view the intervention as desirable and legitimate, I think that the most concerning aspect of this action is that Congress’ power-of-the-purse is so constrained in this case. So far the Pentagon is funding its operation through its ‘slush fund’, and it will only need to come cap-in-hand to Congress for a supplemental when it burns through $1 billion or so.

    http://www.huffingtonpost.com/2011/03/21/obama-libya-funds-congress_n_838707.html#

    That is particularly worrying.

    Disclaimer: this rebuttal has drawn in places upon the ideas elaborated in the comments section of Michael Lind’s original post: most notably 3cardmonty, Jeffrey P. Harrison, and JLinNH. Many thanks for your thoughts and inspiration.

  14. Flo says:

    Gosh, Christopher, wish you could have been a bit more specific on Dr. Luck’s comments. But be that as it may, don’t you think the Congress effectively waives its right to impeach when it legislates in good faith (even if later adudged unconstitutional) a procedure that it wishes the President to follow?

  15. Christopher Sharples says:

    I’m not sure that I follow you here Flo.

    I take your question to mean that if the Congress legislates under the authority of the Necessary and Proper clause to stipulate a procedure which must be followed by the President in the exercise of his authority, do I think that they waive their right to impeach?

    The short answer is no, because the WPR is binding law. We might quibble over what is covered by the terms ‘high crimes and misdemeanours’ but maladministration might be one.

    However, the question is one of political will, and in the case of a broadly popular action I don’t believe that it is there.

    There is of course the separate issue of whether this is a regulation of the ‘President’s authority’ to wage war at all.

    The problem is that I don’t believe that the President had a good enough reason not to seek prior authorization, and as such is undermining the law.

    It contributes to a damaging pattern of past actions which minimize the importance of Congressional consultation.

    Btw, the reading of the law in my previous comment correlates completely with the analysis of The Constitution Project.

    http://www.constitutionproject.org/pdf/28.pdf#page=33

    (the relevant bit starts at the bottom of the page)

  16. Ms. Reid,
    As a fan of your blog, I really do appreciate the many good posts that you do illuminating the many stories that don’t make it to the mass-market media. Most of those are stories dealing with Florida issues.
    When you make comments like “people like you who hate the President”, referring to me, you really hurt your brand.
    You don’t know anything about me. Obviously you’ve missed the many times that I’ve made a point of saying – usually in Mr. Obama’s defense – that what’s important is not the President, but the Presidency.
    I happen to have great personal liking for the man, the man who contributed his own remarks to Dan Savage’s “It Gets Better” endeavor, for instance. The inspiring man who campaigned on positions we both believe in, and for whose campaign I worked tirelessly. The man for whom I bear not one gram of resentment.
    But how I feel about Mr. Obama is irrelevant. My concern is not with man who is titled “Mr. President”, but with the behavior and direction of the Presidency, regardless of who occupies it.
    Your post is ‘pseudo-history’ because anyone can cull references to support whatever they want. It is in no way scholarly analysis.
    Your post is intent on defending the President, not in examining the many questions the bombing of Libya raises. It is not just me making noise about this for my own aggrandizement. I’m not running for anything, or looking for a job, or readership, or acclaim. I have no need of those things. You will hear real legitimate questions from thoughtful people all day long discussing the matter on NPR, just to name one source.
    What concerns me is, as I said, questions of ‘what the hell are we doing and why are we doing it?’
    Your post seems to oh-so-cavalierly justify and defend yet more bombing of soldiers and civilians while dismissing any questions as coming from ‘those of you who hate the President.’
    I wonder Ms. Reid, have you ever seen or worked with -up close and personal- the victims of war? I have, at a refugee school in Zimbabwe. Women and children refugees from our proxy war in Angola, farmers mostly, who had their limbs blown off by Claymore mines manufactured in Shreveport Louisiana. I listened to the experts who had the law on their side explaining how it was the right thing to do.
    I don’t know about anyone else’s motivation for questioning the behavior of our Presidency, our State Department, our Justice Department and our Defense Department. But I can assure you my questions do not come from some petty grievance with Mr. Obama.
    Maybe raising up the analysis and toning down the insults would shine up that RR brand the way it deserves.

  17. Pingback: Up for debate: could Obama ‘pull a Bush’ on debt ceiling, DREAM Act? : The Reid Report

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