Why Obama's action in Libya is specifically illegal

[PurityOfEssence]

(on edit, I'm changing the thread title from unconstitutional to illegal; it's also unconstitutional, but I'm not making that argument here.)

As briefly as possible, both the UN Charter and the US Congress specifically state how this action is unconstitutional without Congressional Authorization.

UN Charter Article 42 allows the Security Council to authorize the use of "air, sea or land forces" if it deems that this is necessary to restore order. This is what many people claim gives Obama to act of his own volition. The forces in question, however are governed by Article 43, which specifically states that the "special agreements" by which they are made available by the member nations to the UN "...shall be subject to ratification by the signatory states in accordance with their respective constitutional processes."

That means that the UN does not claim the right to do an end-run around member countries' internal legal processes, and it does not constitute an agreement from the countries to allow their forces to be used unless specifically granted by whatever the laws are back home. It is not a Treaty with a precondition or anything of the sort.

The US Law that governs our involvement in the United Nations is the UN Participation Act of 1945. Clause 6 is obtusely worded, but it says that a President may negotiate a "special agreement" about the use of force, but that such an agreement has to be Authorized by Congress. It goes on to say that, if the UN calls out forces under Article 42, the President may act without further Authorization "PURSUANT OF SUCH SPECIAL AGREEMENT OR AGREEMENTS", which means that, if the President gets Constitutional Authorization beforehand, then further permission isn't needed to engage.

Here's a better explanation:

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

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

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

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

(That's from The American Journal of International Law, and you'll find it in section IV)

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

Truman violated this, and took heat for it at the time, but the country was so rabidly anti-communist, that he got away with it. Also, fans of a stronger executive LIKE his overstepping, and would like to see it stand.

There. Ya can prove the point with the War Powers Act tied behind your back and not even mention wording of our fine, fine Constitution; the very law that dictates our involvement in the United Nations FORBIDS the President to act in response to UN Article 42 unless he's either gotten Authorization for a special agreement beforehand, or does it following the call-up and before action. Not only that, that oh-so-tacky word "WAR" doesn't even have to be mentioned at all. How tidy.

The UN specifically says that it doesn't presume or ask for anything that the home countries don't allow in accord with their constitutions, and our law specifically requires Congress' Authorization.

I invite any and all refutation or dispute.

I want the President to acknowledge this so it's not used against him and us, and I'll bet that a bit of an apology would satisfy enough of the hounds.

[robcon]

1. The analysis is complete nonsense.

Member states can agree or disagree, according to their own internal decision systems.

Ergo, Obama can deploy defense assets as he sees fit, but cannot declare war, according to the U.S. system.

Thanks for proving the case.

[PurityOfEssence]

20. The internal decision system is clearly defined in Congress' UN Participation Act of 1945,

and it states that the President can make a special agreement, but that Congress has to AUTHORIZE it. When the call-up comes under Article 42, the President doesn't have to go back to them, but ONLY IF HE/SHE HAS ALREADY GOTTEN THEIR AUTHORIZATION, and it even further goes on to state that if he acts on a prior authorization, that doesn't mean that he has authorization to do anything outside of those specific authorized parameters.

It's really iron-clad.

The term "WAR" isn't even used. The definition at hand, per Congress' UN Participation Act is "the purpose of maintaining international peace and security" and it's defined in the UN Charter as "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."

The language of the UN Participation Act and the UN is to "make available" such forces. That's what I'm talking about, and whether it's a war or a policing action or a janitorial shift or good old-fashioned tyrant-stomping doesn't much matter. The problem is that he doesn't have the personal authority to "make available" our various forces as well as our assistance, facilities and rights of passage. Hey, it's even more of a strait-jacket than I'm really getting into; I'm trying to make a clear and fundamental point about the right to initiate action and send in the boys and girls.

The issue of whether he can "declare war" (which he can't under ANY interpretation of the Constitution, the War Powers Act or the UN Participation Act) is immaterial. He can stage them right outside the door with guns drawn but, by the language of the War Powers Act, he can't introduce them into "hostilities" or where those hostilities are imminent. Once again, though, my argument does not even rely on the War Powers Act, since Obama does not cite that as his justification to take action. (He IS in COMPLETE violation of that act, though, as I will show later.)

[vaberella]

2. Fail. Debunked. Plus, I am under the impression people who push this want O impeached.

And I say this because this has been disputed and each time it's been shown to be proven incorrectly. A quick search would clarify that. You ignore things that have clarified as detailed in the War Powers Act of '73. Which is used in Obama's letter to Congress.

[PurityOfEssence]

8. That sounds like an attempt to silence all criticism

I do not want Obama impeached, and saying so sounds VERY much like a thinly-veiled attempt to label anyone bringing this up as villains unfit to belong in our online community and deserving of complete ostracism and silencing. Not only don't I, but I very clearly state that in the end of the thread-starting post.

I have many troubles with him and with his political stances, and have been consistent about this on this board since late 2006 when he actively legitimized evangelicals and evoked religion in the political process in a major way. His corporatism is even more alarming to me, and I also have problems with the habitual feeble tactics of appeasement, but I have also been present to praise him in situations where I think he's done the right thing, such as the credit card legislation. Still, I voted for him and tried to sway conservatives and other doubters to do so too. This is our home, here, and THIS is where we air our differences.

Yes, I am a bit of a partisan, but I am specifically bringing this up TO PROTECT US, since he has put himself, and in turn, ourselves in jeopardy with this action. I also deeply dread the incremental precedents being set to strengthen the Executive in war-making.

As for the War Powers Act, I have argued this many times, and have met with repeated annoyance from people that they just don't like the Act or feel it Unconstitutional, and thus, chose to make my case without it at all. He is undeniably in violation of it, which I will demonstrate in response to another post in this thread. It does not supersede the UN Participation Act in any way, and it does not give to the UN Charter anything it doesn't ask for in the first place.

Obama references the UN Charter SIX TIMES in his letter to Congress, but only at the very end does he mention the War Powers Act, and NOT as a justification to act. In fact, he doesn't even affirm that he considers himself obligated to obey it, and is only stating that it's part of his efforts to keep Congress informed, consistent with the Act. He's not using the Act as a justification for taking action, which IS REALLY, REALLY TELLING, because he wouldn't have a leg to stand on if he tried.

He used Chapter VII of the UN Charter to justify his actions, so that's what I am using here in an attempt at a clear and orderly rebuttal; Articles 42 and 43 are in Chapter VII.

Since you and I have both been very active in the other threads regarding this, you should well know that I've argued the violation of the War Powers Act many times, and it is not a settled issue by any stretch of the imagination or partisan wishful thinking.

[uponit7771]

54. It'd be nice if this "criticism" would be fact based, bashers hate facts

[PurityOfEssence]

55. Participating in this UN operation REQUIRES CONGRESSIONAL AUTHORIZATION

He'll, I'm literally using the documents themselves. They are FACTS.

[Vattel]

3. Basically, I agree with your analysis.

It's ironic that Truman's actions have been used to support Obama given that he played a big role in the continuing trend towards the President usurping the Congress's war powers. I think the use of force in Libya might well be a good thing, but it is illegal and unconstitutional and contrary to Obama's own anti-executive-power rhetoric during the campaign.

[robcon]

4. How is it illegal and unconstitutional?

He didn't declare war. He deployed military forces without declaring war on anyone.

He obeyed the War Powers Act.

Since he didn't violate the constitution or the War Powers Act, what's your beef?

[Vattel]

5. It's a long story robcon,

but as even Alexander Hamilton claimed (and he is about the most pro-executive-power Founder you can find), only the Congress is constitutionally qualified to put us into a state of war: “While, therefore, the legislature can alone declare war, can alone actually transfer the nation from a state of peace to a state of hostility, it belongs to the “executive power” to do whatever else the law of nations, cooperating with the treaties of the country, enjoin in the intercourse of the United States with foreign powers. In this distribution of authority, the wisdom of our Constitution is manifested. It is the province and duty of the executive to preserve to the nation the blessings of peace. The legislature alone can interrupt them by placing the nation in a state of war.”

You can argue that we are not in a state of war with the government of Libya (obviously we are not in a state of war with the people or nation of Libya), but the Founders had a very broad notion of war in mind when they wrote and ratified the Constitution. And the power to authorize hostilities that might not constitute wars (e.g., reprisals) is also vested in Congress rather than the President.

[robcon]

6. You're just making that up, IMO.

"but the Founders had a very broad notion of war in mind when they wrote and ratified the Constitution."

Says who? That's certainly not in the Federalist Papers. What is your source in the constitution that 'declaring war' didn't just mean the classic one country declares a state of war vs. another country?

-Did we need a declaration of war for the military to fight pirates?
-Did we need a declaration of war to put down the Whiskey Rebellion?

[Vattel]

7. Well, your opinion is incorrect.

Read the definitions of war by legal theorists of the day. Or look at how Hobbes and Locke defined war. Then get back to me.

You don't need a declaration of war for simple self-defense. I even agree with Hamilton that we don't need a declaration of war if another nation or group (e.g., Al Qaeda) declares war against us. When war already exists, the President does not need Congressional authorization to wage war. But he does need Congressional authorization to transfer the nation from a state of peace to a state of hostilities.

[jefferson_dem]

10. An interesting academic exercise but ... frankly, i'm surprised to see so much celebration of

"original intent" on this board.

[Vattel]

14. Well, everyone is an originalist to some degree

No one except maybe Clarence Thomas is a pure originalist, but almost no one denies the relevance of the original public meaning of the text. I'm among those who think that originalism is the liberal's friend, especially when it comes to civil liberties. Conservative originalists are typically bad historians. Good history + originalism = liberal decisions from the bench.

[PurityOfEssence]

17. The law is not just the law "for them", and "original intent" is a conservative-labeling slur.

It's all very cute to use a term to somehow link a critic to the mindset of primitive thugs like Antonin Scalia or to depict those who are enslaved to literalism as somehow inferior, but the law means something. It NEEDS to mean something.

With each encroachment on legislative oversight that we accept, we lay the groundwork for future reckless intervention. This results in killing, lest you forget: killing of innocents, killing of breadwinners, maiming of people, leveling of economies that put people at health and physical risk, destabilization of the world economy that puts everyone at risk, and further tarnishing of our national reputation. It's serious.

Advocating self-serving, malleable and selective obeisance to LAWS is a danger to us all.

We raged mightily at how the conservatives behaved in high-handed ways and simply disregarded laws that annoyed them or stood in their way, but far too many seem to think that we have every right to do so. Of course we do: we're "good" and we're "right" and our side has always been treated unfairly, therefore, we have the right to defy the Congress, the Constitution and yes, even the United Nations that we cite as the excuse for this action to do as we please. What makes us any better? That's some kind of evocation of privilege, and at odds with the concept of pluralism.

To clarify: when I say that this even puts us at the odds with the UN, the Charter states that the agreements a leader makes need to be subject to constitutional process in that country, so for Obama to commit forces without having gotten that approval, he's not living up to the very United Nations from whom he claims the incorrect right to act.

"We" may be better than "them", but only if our actions prove it, and even if we're somewhat better than "them", we still need to be legal. It's the glue that holds civilization together.

We could be doing the fans of the strong executive a great favor here by letting our President get away with this: imagine if a truly ugly reactionary gets elected; he/she can do all sorts of ugly things and hide behind Obama's adventurism.

It's very simple: he needs to get in front of this and just say that he misstepped and wants to meet with Congress to make sure they're satisfied with the ensuing moves.

[jefferson_dem]

22. Perhaps there's a reason why you took it as a slur...even though it was not intended as such.

I was merely expressing a bit of surprise that some here are so eager to critique Obama's actions through a distorted 220 year old lens.

No worries. Nobody is "advocating self-serving, malleable and selective obeisance to LAWS" or recommending President Obama simply disregard laws that annoy him.

[Hosnon]

26. +1. nt.

[PurityOfEssence]

29. The term "war" doesn't enter into it, and he disobeyed the War Powers Act

The UN Charter doesn't use the word "war", nor does our Congressional Act regarding our national participation in the organization.

The War Powers Act, DOES define war, and does so as putting Armed Forces into "hostilities" or areas where hostilities are imminent. Per the War Powers definition, this is certainly war.

The War Powers Act is made under the "necessary and proper" clause, which declares that Congress may make laws determining how Constitutional POWERS may be used, and it's the law of the land and binding as such. Thus, defying the stipulations of one's legal rights under this law is to do something unconstitutional.

The War Powers Act clearly states that the ONLY THREE INSTANCES where a President is permitted to order armed forces (with or without boots, mind you) into such a situation is if: 1) Congress Declares War, 2) Congress Authorizes some other euphemistic operation or 3) We are attacked. He can do the latter without the authorization of Congress, but that doesn't apply here.

He didn't declare war, as you say, and he deployed forces, as you say. By the way he violated the War Powers Act, which he clearly did, he violated the constitution; he does not have the Constitutional power to send forces to war (which is what the law describes this kind of action as) without Congress' authorization UNLESS ATTACKED.

This is serious, and will definitely have nasty repercussions. Even if the reactionaries look the other way, it'll be used to "justify" further adventures by a future President who may not be such a fine fellow.

The law matters.

[PurityOfEssence]

11. Thank you. We need to recognize this and encourage him to make amends or there'll be hell to pay

The blinkered hero-worship was somewhat understandable a few years ago, when it really looked like a true champion was emerging to lead us out of 28 years of neo-feudalism, but the cult of an individual is a dangerous thing, and regardless of his many good qualities, he's done pluralism some considerable harm.

My principal worry when starting this was the pernicious erosion of the checks and balances by which we engage in war and global intervention: the more we let people get away with things, the easier it's going to be. Truman, for all his many strengths, was a bit of a tyrant--the steel labor issues during the Korean Policing Action are a good example--and he took heat for this and the involvement in the war at the time. Robert Taft decried it as unconstitutional, and he wasn't the only one, but the country was so blind-mad with anti-communist rage that both sides more or less looked the other way. A similar thing is going on now, but the Republicans are perfectly capable of letting him do their dirty work for them and then sandbagging him later. Boehner's letter is chilling in how it lays out groundwork for future action and especially for not addressing this issue, which I guarantee you they're aware of. Crazies like Pat Buchanan are bringing it up, but I'll bet they're getting calls from the more measured and methodical forces of reactionary dominance.

Obama is not above the law. Whether my particular taste for a not-so-strong-executive is "right" or "sensible" or not, it's the law in this instance, and being a longtime history nut, I truly fear and am disgusted by WAR. This is not a joke, and those supporters who think that he deserves to do so because he's so good and everything he does is thus is beyond our understanding or reproach are a danger to us all.

[Vattel]

15. I agree whole-heartedly

[Gravel Democrat]

27. *excellent* post(s)

A Jefferson for you



"Experience hath shewn, that even under the best forms of government those entrusted with power have, in time, and by slow operations, perverted it into tyranny."
Thomas Jefferson

Loved that part about "Even Hamilton!"

[dennis4868]

32. Right....

and when Reagan and Clinton both violated the war powers act there was not a peep from the liberal world about...NO HELL TO PAY...now that a black man is president....there is HELL TO PAY!

[PurityOfEssence]

35. Reagan and Clinton caught holy hell for their mis-steps

First, let's separate the arguments based on the War Powers Act and those based on violation of US Laws pertaining to the United Nations, even though Obama broke both worse than any other President has, except for possibly the War Powers Act violation by Bill Clinton. (I'm not as well-versed as I should be on Kosovo, but as I understand it, he was in violation.)

To your point, though, Reagan and Clinton BOTH caught hell for their respective actions, but they BOTH had complied with and more or less respected the War Powers Act in previous situations, so they had at least some presumption of respect for the law.

Reagan was a bit out of line with the Lebanon deployment, but he was more or less in compliance. Although he did not CONSULT Congress for Grenada or get an authorization, he met personally with the Speaker of the House, Tip O'Neill, and explained his rationale for it being such an imminent threat that it constituted an attack upon us that would not necessitate Congressional Authorization. That's just a whopping load of bullying bullshit, and he was a thorough asshole for this and so much more. O'Neill did not concur, but recognized the consideration for the law, even if done while breaking it, and took Reagan's assurances that it would be over immediately and that he would obey the War Powers Act as it pertained to ongoing involvement.

The press howled about this, and the world community went into a stark, staring (and justified) rage about doing this with no UN consultation. He got a MAJOR shit-storm of static over this.

Clinton, once again, as I understand the situation from memory and not having done my homework recently, did this through NATO and did so at a time of REAL crisis: with a full-on, textbook genocide going on with catastrophic ethnic cleansing and crazed religion to boot. He had mightily complied with the War Powers Act during Somalia, and had been extremely respectful and hard-working with both houses of Congress at the time, so there were some points earned there to soften the ire of the moment.

Still, he took hell from the Republicans about this in no uncertain terms, and the press had the proverbial field day.

This is a serious problem, and he needs to get out in front of it. Trying to shut down opposition through claims of racism do nobody any good, and further play into the hands of those who would say that we are expecting some kind of privilege as we flagrantly break the law.

[jefferson_dem]

9. There are mountains of precedent that annihilate your conclusion.

Sorry.

[PurityOfEssence]

13. Really? The fire up the earth-mover and shovel away.

This is simply not true.

Regarding the UN Participation Act as it pertains to military operations:

--Truman defied it, got away with it, but caught hell and is generally regarded by legal historians as having been in violation of the agreement.
--Eisenhower didn't do anything under UN auspices that violated this.
--Kennedy didn't do anything under UN auspices that violated this.
--Johnson didn't do anything under UN auspices that violated this.
--Nixon didn't do anything under UN auspices that violated this.
--Ford didn't do anything under UN auspices that violated this.
--Same with Carter.
--Reagan participated in UN operations in Lebanon, and although there were war powers issues, he more or less complied with this.
--Bush Sr., Clinton and Bush Jr. also didn't violate this.

I may be missing something, but it's something small if I did.

The point of this analysis is that Obama is citing his personal rights under the UN Charter to do this, and that's why I'm simply making the case of this being in violation of both Congress' law by which we participate in the United Nations, and the UN Charter itself.

What you're effectively saying is that your personal word that there's undeniable and endless proof that my contention is wrong. My measured and specific citing of instances is somehow inferior to your unsubstantiated statement.

[jefferson_dem]

19. Kosovo, Somalia, Grenada, and Panama come to mind.

The controlling precedent regarding the "...shall be subject to ratification by the signatory states in accordance with their respective constitutional processes" qualifier is the War Powers Act, which recognizes that the President, as commander-in-chief, may send troops abroad without advance congressional approval, provided he notifies them within 48 hours.

Since Congress had not expressly prohibited military action in Libya, Obama was clearly operating within the law when he approved the mission.

Tell me where i'm wrong.

[PurityOfEssence]

24. Reagan didn't cite the UN for Grenada, Bush didn't for Panama, he did for Somalia, Kosovo was NATO

I don't know enough about Kosovo, but I'm going to brush up this weekend.

Here's the contention I make: Obama didn't use the War Powers Act as a justification for intervening; he simply referred to it at the very end, saying that he was informing Congress "consistent" to its stipulations. It's fine lawyerly talk, and he's not even saying that he's obeying it or even recognizing it's constitutionality or standing as a current law. He's completely in violation of the War Powers Act--as have been other Presidents, although NONE so flagrantly--which I will seek to explain later today.

Thus, I'm only addressing his contention that the UN Charter gives him the power to do this.

Reagan didn't address the UN at all about Grenada: he just did it, and made some concessions to addressing the War Powers Act (had a chat with O'Neill, and claimed imminent danger that was tantamount to an attack; it was bullshit, but he at least addressed it.) There is no UN issue at hand with Grenada at all; they shrieked--as well they should have--about it, but Reagan did not justify his action in Grenada with the UN Charter.

Bush Sr. didn't cite the UN Charter as justification for Panama, and he didn't do it under their auspices.

Bush Sr. got broad support from Congress and President-Elect Clinton for the intervention, which was done under the UN Mandate (I believe that he didn't technically get Congressional Authorization, but this was during recess, and he really seems to have followed the spirit of things, and neither side really quibbles much.

Clinton violated the War Powers Act with Kosovo, but didn't cite the UN as his justification, although I admit that I'm very sketchy on this. His and Albright's mechanism to quasi-sanctify this was to do it under the auspices of NATO.

I appreciate your response to my testy rejoinder, but respectfully contend that all four of these situations have no bearing on this issue, since none claimed the UN Charter as a justification.

[dionysus]

12. repeating an opinion over and over doesn't make your opinion a fact,

[Vattel]

16. he didn't merely offer an opinion.

he supported it with an analysis of the text. if you disagree, critique his analysis

[PurityOfEssence]

18. Quite true. Spread the word.

That's why I took the care and effort to carefully research the laws in question and spent as much time as possible to make the most concise and clear post I could. It's out of respect for the reader's time and out of respect for the underlying issue.

How is the thread-starting post merely "opinion"?

[bhikkhu]

21. Then it follows that it is specifically legal for Gadhafi to kill Libyans

...and specifically proper for us to ignore it.

A big part of the argument on Obama's side comes from the constitution - the idea that a person has inalienable rights that are neither granted by government nor removable by governments. Sovereignty has no superiority over individual rights, and is subject to them rather than the other way around. That "the world doesn't work that way" says more about the screwed up ways of the world, and the persistence of antique attitudes and customs.

[Vattel]

23. how does that follow?

[bhikkhu]

25. as the natural result.

[PurityOfEssence]

28. Again, people seem to "feel" that if something is right, it MUST be legal

The initial statement that it would follow that Qaddafi can legally kill his people is ridiculous. US Law about how Presidents interact with the United Nations hasn't anything to do with Qaddafi.

[bhikkhu]

34. Congress unanimously passed a resolution calling for a no fly zone

At the time, Obama was criticized widely for not acting on it more immediately, and for not pushing it in the Security Council prior to gaining the support of the Arab league.

http://nationaljournal.com/congress/senate-passes-resolution-calling-for-no-fly-zone-over-libya-20110301?page=1

From prior wars (all of which I opposed, if that makes any difference) I'm aware that there has been customarily a divergence between how the letter of the law is formed on presidential war powers, and what is actual practice. Given the history on it and the bad precedents of the past, I would be more than happy to endorse a thorough reworking of the procedures. Congress would have to do that.

[PurityOfEssence]

38. That's a "non-binding" resolution, it's only the Senate, and doesn't request OUR involvement

Here's a quote from the beginning of the article you link:

"The resolution, offered by Sens. Robert Menendez, D-N.J., and Mark Kirk, R-Ill., has no force of law. And its symbolic impact on U.S. posture toward Libya is uncertain."

Here's a quote from the Senate Resolution, it:

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

Where does it say anything about our involvement? It's akin to saying: hey guys, ya really ought to do something about this. It's also just a sense of the Senate, and it doesn't pertain to our involvement, although that's certainly implied.

What the UN has done is to pass a very sweeping resolution that goes WAY beyond a mere no-fly zone, with member states attacking ground units of Libya's armed forces that have nothing whatsoever to do with Anti-Aircraft control or anything. Maybe he would have been able to get the authorization. Maybe not; the House of Representatives is a whole different place, and things can change when talking about us actually going in.

The Senate urged the UN to toughen up, but it says nothing about us going in.

http://firstread.msnbc.msn.com/_news/2011/03/21/6315875-wh-pushes-back-on-charge-that-it-didnt-consult-with-congress

[angrychair]

30. Not so fast...

While I don’t discount your argument completely, I find the logic you use shape it inherently flawed and therefore likely not to muster to actual legal challenge to his ability to use U.S. forces in Libya. You have stated several times in posts that since he only mentioned the War Powers Act of 1973 toward the end that this was not his main premise for his actions in Libya, that his justification was acting on the UN Charter and because of that his actions were illegal since he did so without the permission of Congress. Not a bad argument but not a great one either; where this is flawed is that you can't pick or choose which laws you want to follow i.e. since I didn’t say it or don’t use it than that law doesn’t matter. Your argument’s foundation is in that his obligation to get permission first before acting on article 42 or the UN Charter supersedes the War Powers Act of 1973 when it does not. Regardless of his expressed intentions, just because he does not mention it as a premise for action does not preclude him from his obligations under that law and point of fact I suspect, though not a lawyer or Constitutional expert, that the Executive’s powers and responsibilities with respect to that act are specific enough that as long as he adheres to those guidelines he has the legal authority to act within them and would be regarded as adhering to the constraints of the other at the same time, if not specifically at least in principal. I think it would be exceptional for the Judicial branch of the government to infringe to overtly into the Executive’s power as Commander-in-Chief in the use of force, except in the most extreme overreach of authority.

[PurityOfEssence]

31. You're claiming I say something I didn't

Here's what you said:

"Your argument’s foundation is in that his obligation to get permission first before acting on article 42 or the UN Charter supersedes the War Powers Act of 1973 when it does not."

I'm saying nothing of the kind. I don't think the War Powers Act of 1973 conflicts with or overrides the UN Participation of 1945 on this issue at all; they're in complete accord on this particular point. (Amazing numerology, in light of UN Resolution 1973, eh?) I'm merely saying that he can be shown to be performing an illegal act without even mentioning the War Powers Act. That was where my snide line about being able to do it with the War Powers Act tied behind my back. He's in direct defiance of it as well as our Congressional Law that defines how we participate in the UN from which he thinks he gets permission. Hell, that makes his crime even more serious, since either law alone takes him down.

My purpose of taking this tack is that people were sniveling about how they didn't consider the War Powers Act Constitutional, and that, even though it is the standing law of the land, and LITERALLY an interpretation of what the Enumerated Constitutional Powers are, that if one sorta just didn't particularly "like" it, it didn't need to be heeded. I was getting so sick to death of that scofflaw privilege attitude, and so concerned with making a CONCISE argument, that I chose to show that he could be shown to be performing an illegal act without even bringing the War Powers Act into question.

I am not picking and choosing which laws I want to follow by omitting it from an argument, in fact, I'm doing it in reaction to people who like to do that.

To be clear, I contend that he is expressly in violation of the War Powers Act, too. It's a standing U.S. law that clearly states that the President may only send armed forces into "hostilities" or where hostilities are imminent if Congress Declares War, Congress Authorizes it or if we're attacked. He's in violation of that big time.

He was very cagey by mentioning the War Powers Act at the end, but that he was being "consistent" with it, rather than "obeying" it or complying with its requirements or anything at all; by doing so, he can still maintain some claim that he's not subject to it, AND he can also claim to be following it.

I hope you don't take this as insulting, but I made it pretty damned clear that I wasn't denying the authority of the War Powers Act.

Thanks for your time, and I think we're in big trouble here. What's galling is how people refuse to address this; it's not going to go away. It will be used to hurt him somehow, and he needs to cover his ass.

[angrychair]

42. I think you doth protest to much

Your faux concern is glaring. I stand by my original statements. Your entire original argument focuses almost completely on the UN angle. By your own admission you do this at the almost total exclusion of WPA. Your hyperbole aside, you make assumptions that previous court and SCOTUS rulings do not bare you out on. That was my whole point that as long as he works within the rules set forth in the WPA that compliance with one will be taken as compliance with the other, if not specifically at least in principal. Again, while I admit I am neither a lawyer nor a Constitutional expert, observation and a elementary study into how separation of powers issues have been ruled on in the past, a great deal of deference has been given in most cases regarding the Executive's powers as commander-in-chief. As a specific example the most recent lawsuit brought against the Executive, specifically Clinton, regarding actions in Yugoslavia was ruled on in favor of the Executive over the Legislative without an actual trial.

I'd like to point out something in one of your responses to someone else that I find very telling in your actual intent here. You give a great deal of difference to Boehner with respect to how much and when they were briefed about Libya and if that was even good enough, yet you use terms like "cagey" when speaking about the President's actions. I find it odd that you would frame your debate in such terms, with tact acceptance of Boehner's self-serving angle and disregard for statements from the Executive. Public statements leading up to the UN vote from both houses were very clearly in support for such an action. The Senate voted an uncontested resolution in support of US military and UN action against Libya. He met with the leadership and briefed them before an action took place. The UN vote did not happen in the dead of night nor in secret. It was very public and debated in public from every angle. The intent of the Executive was not secret, they were very public about the need and their desire to have a no fly zone and yet no serious protest from either house. I again say, I think you doth protest to much.

[PurityOfEssence]

48. Please don't insinuate that I like John Boehner

I'm a left-liberal Democrat, and I cannot stand the man. From what I'm reading now, there was a meeting on Friday that Boehner chose to not attend. If he's lying about leaders not being consulted--which it sounds like he is--then, good: he'll catch hell for it.

I give him no deference, and no tacit acceptance of his self-serving nature. I'm seriously worried about how they're going to use the whole thing; authorization has to be by statute from both houses.

The non-binding Senate vote did not mention U.S. involvement at all; please give it a read.

Lugar (another person I don't like) stated that it needed to be debated and authorized. The scope of the involvement now being undertaken is greater than just a "no-fly zone", and the parameters deserve to be determined by our legislature.

In kind, I must state that this smacks of character assassination, casting aspersions of my loyalty to the left, and using a quote from Hamlet that infers that the subject is being publicly deceptive.

Obama has left himself very exposed here, and these guys will stop at nothing. Now, if it gets messy, they can claim that it's because he didn't listen to them, and they can always pull out the illegality of his action as well. They might even use it to try and impeach, although I'd be a bit surprised about that; Presidents have a bit of insulation when at war. More galling about the whole thing is the further buttressing of the Imperial Presidency, and Republicans LOVE that; there's nothing they'd like more out of this than to undermine the War Powers Act so they can wield it in all its totalitarian glory if they can take the Presidency. Until then, it gives them complete cover, and it's just like their economic policies: if they work, great, but if they fail, somebody else is holding the bag.

I also just like having orderly laws, ESPECIALLY when it comes to war.

The compliance with one being the same as compliance with the other is sort of to my point, too: the rules of initiating conflict are basically the same, so if he's in violation of one, he's probably in violation of the other. I really like the War Powers Act; I think it's a splendid bit of legislation that really speaks to the letter and the spirit of the law, and tries to make things very, very obvious, right down to a simple definition of war. The reason I didn't use it as the justification in this thread, as I've said before, is that people were discrediting it and questioning its validity to a degree that I simply didn't want to bother arguing it anymore, especially when Obama doesn't use it in his explanation of his impetus and justification for taking action as he did.

[dennis4868]

33. HUH?

Obama, per the WPA notified congress within 48 hours after starting military action, and has 60 days to get congressional approvel.....SO WHAT IS THE PROBLEM OTHER THAN MANY REPUBS AND DUers WANT HIM IMPEACHED OVER ANYTHING (whether or not it is based on law or fact)?

[PurityOfEssence]

36. I'm not talking about the War Powers Act, but he's in TOTAL violation of that, and here's how:

Congress has the right under the "necessary and proper" clause to make laws to clarify and define how powers that are specifically granted in the Constitution, and used this clause to craft the War Powers Act. They passed it, Nixon vetoed it, and they overrode the veto; it's been in effect for just short of 38 years.

The War Powers Act does three things that pertain to the Libyan situation:

1) It defines "war" as introducing armed forces (not just ones with boots or even near the ground) into "hostilities" or into a situation where hostilities may be imminent. This is undeniably the case with our current actions.

2) It states VERY clearly that the President may only introduce armed forces into such a situation if Congress Declares War, Congress Authorizes the action or WE ARE ATTACKED.

3) It requires the President to CONSULT with Congress, which Boehner claims he didn't do beforehand. Quibbling about what constitutes "consultations" aside, it's at least clear that Obama didn't really have things buttoned up here, even if Boehner is splitting hairs. Compared to the other two issues here, it's really just a side light.

The President may NOT introduce armed forces into hostilities or an area of imminent hostilities UNLESS WE ARE ATTACKED. We were not attacked. If we had been attacked, he would have been allowed to respond.

The type of involvement is clearly stipulated, and the mechanisms by which he may act are chrystal-clear. Would you please be so kind as to respond? Thanks in advance.

[dennis4868]

37. I responded by email....

you left out the one part of the statute that allows Obama to act without preapproval by congress.....I explained in my email.

[PurityOfEssence]

43. I believe you're making the same mistake guruoo is making; there's no such thing

There is no part in there that allows him to act without preapproval, unless attacked.

You claim that there is, but do not cite any part of the law.

Here it is; please read it. It even reiterates this at the end.

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

[jefferson_dem]

51. Interesting.

Could you cite legal precedent (i.e. a SCOTUS ruling perhaps) regarding the WPA? Has the Court ever declared any presidential action as commander-in-chief to be a violation of the WPA? If not, we'll have to assume every president since 1973 has acted in accordance with legal-constitution requirements.

[PurityOfEssence]

52. Not being a lawyer, I don't know, but that's why I instinctively dread this action

Thanks for the engaging tone and concern. I don't want this to blow up in his and our faces, and I also don't want the precedent set to further strengthen the already-too-imperial-presidency that the Republicans--and apparently Obama--all seem to want.

He's not above the law. The carping we hear from the most worshipful of his extreme partisans would have us let him do anything and not hold him accountable for anything, either.

Worse than all that is the specter of what the Republicans can do with this; it's REALLY an impeachable offense, but they're so in love with a Righteous Strong Executive that they'll probably want him to get away with it so they can wield that power themselves when they next take the Presidency. With this, they can easily blame him for any failure or mishaps. Literally ANY economic collapse that can be the least bit traceable to this can be thoroughly blamed on him for not having gotten their assent to the plan. I don't see many rosy outcomes in the offing, but I'm just in a bad mood.

Back to your principal point, though: if it's seen that this kind of thing is permissible in light of prior perpetration (which is my snotty layman's dismissal of "precedent") then, like the incremental encroachment of religion, go-it-alone-warmongers will take this and go to the next step.

In a dispute with one of the other posters in this thread, I was sent via my inbox an article from the New York Times from 1984 that incorrectly states that the President can deploy troops for a limited time without being attacked based on the War Powers Act. I did a quick search and found this:

http://www.nytimes.com/2011/03/22/world/africa/22powers.html?_r=1&scp=2&sq=War%20powers%20act&st=cse

a New York Times article from six days ago that clearly refutes this, but STILL makes the error that a President can deploy when an attack is imminent. This wholly incorrect, but I, in my cynicism, attribute it to the cheapening of the Act over time and it's violations that haven't been significantly countered.

It's clear, and it's the law: "war" is defined as introducing armed forces into "hostilities" or where hostilities are imminent, and a President can ONLY do it where Congress Declares War, Authorizes the euphemistic action or WE'VE BEEN ATTACKED. There's no wiggle room whatsoever.

Anyone who considers that it's "okay" for "our guy" to break the current and binding interpretation of what is constitutional regarding organized modern military killing is not our "friend"; they are at odds with the very concept of civilization, regardless what "good" they claim to be enacting.

It's not going to go away, and it's going to hurt us if not addressed.

[jefferson_dem]

53. While I don't necessarily agree with your conclusion we are in total accordance in principle.

Thanks and Take care. :)

[guruoo]

39. "..60 days, with a further 30 day withdrawal period, without an authorization..."

'The War Powers Resolution requires the president to notify Congress within 48 hours of committing armed forces to military action and forbids armed forces from remaining for more than 60 days, with a further 30 day withdrawal period, without an authorization of the use of military force or a declaration of war.

http://en.wikipedia.org/wiki/War_Powers_Resolution


So, once again it's good night, lights out.
http://3.bp.blogspot.com/_ZloxuWm4AwM/Sr9jW_b-pKI/AAAAAAAAACU/T1irU7CRir8/s400/Muhammad+ali.jpg

[PurityOfEssence]

41. The VERY article you quote STARTS by disproving you, then you snip a bit out of context

I mean, seriously, are you only able to see what you want to see?

Here's the Wikipedia Article, from your own link, with my added emphasis:

"The War Powers Resolution...was a United States Congress joint resolution providing that the President can send U.S. armed forces into action abroad only by authorization of Congress or if the United States is already under attack or serious threat.(citation needed) The War Powers Resolution requires the president to notify Congress within 48 hours of committing armed forces to military action and forbids armed forces from remaining for more than 60 days, with a further 30 day withdrawal period, without an authorization of the use of military force or a declaration of war. The resolution was passed by two-thirds of Congress, overriding a presidential veto."

Translation: he cannot send in armed forces without Congress' Authorization UNLESS WE'VE BEEN ATTACKED The second sentence doesn't explain his right to send in forces, it specifies how he's to notify Congress after doing so by legal means: whether he's acting upon Congress' Authorization or Declaration of War, OR he's responding of his own voliton to an attack, he has to inform Congress within 48 hours.

There's a reason why they still need citation for that first sentence, because there is no provision in the War Powers Act for the President to act alone due to a "serious threat"; that will get changed in the Wikipedia Article because it's incorrect. That's the bullshit kind of mealy-mouthed excuse that Reagan used for Grenada and Bush used for Panama.

Here's the language from the Resolution:

"Sec. 2(c) (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."

In case it's unclear, only Congress may Declare War, and a statutory authorization has to come from them, too, and that means BOTH the House and Senate, and in binding legislation.

Here's the full text:

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

This is all getting really tiresome. If you had read the first paragraph of what you wave as triumphal proof, you'd see that he can't go it alone in this case. And if you'd taken the time to read the actual law, you'd see how important it is: Wikipedia gets things wrong all the time, even if it STILL proves you wrong.

You can float like a butterfly
and sting like a bee
but ya oughta do some readin'
'steada actin' like you're three.

Please have the responsibility in a serious situation like this to reply and concur.

[LooseWilly]

45. Bwahahaaa... (such elegantly landed counter-snark)

:+

I've been following your arguments over several threads... and you've argued cogently and saved me the trouble of having to "invent the wheel" of legal details for myself.

Sincere thanks... :toast:

I only wish I could so cavalierly disregard major national-importance laws- maybe one day...

[guruoo]

47. ROTFL!

Drums say visitors are angry. :headbang:

[PurityOfEssence]

50. Disregard?

I'm begging that they be respected and obeyed; this scares the snot out of me, and you can imagine how much of that I've got...

Imagine what a Future Republican President will do if he/she thinks it's okay to ignore Congress' right to make the decision to engage unless attacked.

Please read on, though; I think you'll see the obvious and clear wording and meaning of the War Powers Act: to put armed forces into hostilities, the President MUST have prior Declaration of War or Authorization from Congress UNLESS we are attacked. It's really simple and REALLY important.

It means that no individual can screw up or overreach or blunder in the initial decision to attack; the consensus of the current proxies get to decide, with the logic being that 535 heads are better than one.

[guruoo]

46. So exactly what part of '60 days, +30 to withdraw' "without authorization" do you not understand?

"Wikipedia gets things wrong all the time, even if it STILL proves you wrong."

:rofl:

[PurityOfEssence]

49. "forbids...more than 60 days, with 30 day withdrawal...without an authorization"

Okay, once again, in super-plain English:

He cannot commit forces without Congress' Declaration or Authorization, UNLESS we're attacked. Once he does send them in, whether on his own after an attack, or with Congress' legislation in effect, he then has 48 hours to notify, and he can't keep them there more than ninety days UNLESS THERE'S AN AUTHORIZATION OR DECLARATION FROM CONGRESS.

What you quote out of context doesn't say that he can just send them in when and where he pleases; it doesn't even address the reasoning or justification at all for sending them in or the mechanism or anything. You're just showing me what he's required to do after he sends them in. Within 48 hours, he has to report, and then the clock starts ticking; if he doesn't have Congress' authorization or Declaration, they have to cease operations within 60 days, and he's given a grace period of 30 days to get everybody out.

Here's what you quote, which is not the wording of the Resolution, but still correct:

"The War Powers Resolution requires the president to notify Congress within 48 hours of committing armed forces to military action and forbids armed forces from remaining for more than 60 days, with a further 30 day withdrawal period, without an authorization of the use of military force or a declaration of war."

"Committing" does not mean "making a decision and sending", it means "deploying"

Where does it say in there that he can just do as he please and send them anywhere he wants whenever he wants, and THEN call home to notify the bench-warming bit-players in that irrelevant ornamental showplace at the other end of Pennsylvania Avenue? It doesn't address the sending at all, just what he's supposed to do after they are sent off to kill.

Once again, IN ONE-SYLLABLE WORDS: The law says don't send them 'til we say so OR we get hit, then call us in two days and don't stay more than two months (fine, one more to pick things up) if we don't say you can with a big, clear law from both of us.

Now get up off the emoti-floor, dust yourself off and please acknowledge the mistake.

War bad. War kills. Republicans looking for blood.

[Politicalboi]

40. Where was all this talk

In 2003? What Bush did WAS illegal. Oh that's right Bush did because of 9/11 and WMD's so everything is okay.

[Name removed]

44. Deleted message

Message removed by moderator. Click here to review the message board rules.

[ProSense]

56. "Bush completely obeyed the War Powers Act for both Afghanistan and Iraq"

Bullshit!

The War Powers Act doesn't say the President can lie to Congress, make shit up in his report.

Are you actually arguing that the Iraq war was legal?

[PurityOfEssence]

57. Frankly, the War Powers Act does not address "justification" or "truth"

All it says in this situation is that Congress must approve; it binds us all together for the responsibility, and it keeps hotheads from being able to just go off willy-nilly and do as they please.

I'm saying that, as far as The War Powers Act was concerned, he was in very strict compliance as far as getting the authorization. It was promulgated on lies, calculated to terrify legislators right before they were standing for election and cynical to the core, but he followed the process and got Congress' assent.

Obama showed less respect for the Congress and the Constitution here by acting on his own when he specifically didn't have the legal permission to do so.

By U.S. law that governs the initiation of conflict, yes, he was within the law and Obama is not.

Since you're reading this thread, are you now going to stop the continued assertions that Obama did not violate the War Powers Act, the UN Participation Act and the UN Charter? You've made very shrill assertions that have been explicitly answered, even to the extent of using your own posts and pointing out the exact fallacies.

It is a deplorable reality that George W. Bush, a thoroughly despicable cur, followed the law more closely in this instance. Yes, he and his people lied to the United Nations and weren't able to get a resolution, and lied up and down to the media and Congress, but they followed the law, and there are some very important reasons why that is good: it reminds people that they can't just go out on a killing spree without Congress' agreement. Obama has pulled the rug out from under that.

Even if good people do bad things, they're still bad things.

[bemildred]

58. We switched over to expediency as our guide a good half century ago. nt