Libya: War Powers Resolution of 1973 violated? You decide
As I mentioned in “We do not see things as they are; we see them as we are” (June 17), I think anyone interested in understanding the things around us needs to reason on the basis of evidence.
In that spirit, today I’m just going to set out the evidence (with links for you to follow up); many in Congress and the Senate are pressing to influence or end US intervention in Libya, and we’ve seen many others, including the administration, giving their views the last few days.
Exhibit 1: U.S. Constitution, Article 1 - The Legislative Branch
“The Congress shall have Power… To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water….”
Exhibit 2: Richard L. Madden, “House and Senate Override Veto by Nixon on Curb of War Powers; Backers of Bill Win 3-Year Fight,” New York Times, 11/8/73.
For some reason many people seem to think the act never took on the force of law (including the PBS Newshour) or merely mandates that the president “consult” Congress; neither statement is true.
Exhibit 3: Excerpts from the War Powers Resolution of 1973 (passed over president Nixon’s veto, 11/7/73):
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.
The President in every possible instance shall consult with Congress before introducing United States Armed Forces into hostilities or into situations 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….
In the absence of a declaration of war, in any case in which United States Armed Forces are introduced—
the President shall submit within 48 hours to the Speaker of the House of Representatives and to the President pro tempore of the Senate a report, in writing, setting forth—
- into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances;
- 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
- in numbers which substantially enlarge United States Armed Forces equipped for combat already located in a foreign nation;
- (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. 5 (b)
…Within sixty calendar days after a report is submitted or is required to be submitted pursuant to section 1543 (a)(1) of this title, whichever is earlier, the President shall terminate any use of United States Armed Forces with respect to which such report was submitted (or required to be submitted), unless the Congress
- has declared war or has enacted a specific authorization for such use of United States Armed Forces,
- has extended by law such sixty-day period, or
- is physically unable to meet as a result of an armed attack upon the United States. Such sixty-day period shall be extended for not more than an additional thirty days if the President determines and certifies to the Congress in writing that unavoidable military necessity respecting the safety of United States Armed Forces requires the continued use of such armed forces in the course of bringing about a prompt removal of such forces….
(a) Authority to introduce United States Armed Forces into hostilities or into situations wherein involvement in hostilities is clearly indicated by the circumstances shall not be inferred—
- from any provision of law (whether or not in effect before November 7, 1973), including any provision contained in any appropriation Act, unless such provision specifically authorizes the introduction of United States Armed Forces into hostilities or into such situations and states that it is intended to constitute specific statutory authorization within the meaning of this chapter; or
- from any treaty heretofore or hereafter ratified unless such treaty is implemented by legislation specifically authorizing the introduction of United States Armed Forces into hostilities or into such situations and stating that it is intended to constitute specific statutory authorization within the meaning of this chapter….
(c) For purposes of this chapter, the term “introduction of United States Armed Forces” includes the assignment of members of such armed forces to command, coordinate, participate in the movement of, or accompany the regular or irregular military forces of any foreign country or government when such military forces are engaged, or there exists an imminent threat that such forces will become engaged, in hostilities….
War = “A conflict carried on by force of arms, as between nations or between parties within a nation; warfare, as by land, sea, or air ” (dictionary.com, meaning 1).
Hostilities = “Acts of war; overt warfare” (freedictionary.com).
Exhibit 5: Charlie Savage, “Barack Obama’s Q&A,” Boston Globe, December 20, 2007 (answers given by candidate Barack Obama):
2. In what circumstances, if any, would the president have constitutional authority to bomb Iran without seeking a use-of-force authorization from Congress? (Specifically, what about the strategic bombing of suspected nuclear sites — a situation that does not involve stopping an IMMINENT threat?)
The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.
As Commander-in-Chief, the President does have a duty to protect and defend the United States. In instances of self-defense, the President would be within his constitutional authority to act before advising Congress or seeking its consent. History has shown us time and again, however, that military action is most successful when it is authorized and supported by the Legislative branch. It is always preferable to have the informed consent of Congress prior to any military action.
As for the specific question about bombing suspected nuclear sites, I recently introduced S.J. Res. 23, which states in part that “any offensive military action taken by the United States against Iran must be explicitly authorized by Congress.” The recent NIE tells us that Iran in 2003 halted its effort to design a nuclear weapon. While this does not mean that Iran is no longer a threat to the United States or its allies, it does give us time to conduct aggressive and principled personal diplomacy aimed at preventing Iran from developing nuclear weapons.
Exhibit 6: excerpt from Speaker of the House John Boehner (R-OH), letter to president Obama, 6/14/11:
Five days from now, our country will reach the 90-day mark from the notification to Congress regarding the commencement of the military operation in Libya, which began on March 18, 2011. On June 3, 2011, the House passed a resolution which, among other provisions, made clear that the Administration has not asked for, nor received, Congressional authorization of the mission in Libya. Therefore, it would appear that in five days, the Administration will be in violation of the War Powers Resolution unless it asks for and receives authorization from Congress or withdraws all U.S. troops and resources from the mission.
Since the mission began, the Administration has provided tactical operational briefings to the House of Representatives, but the White House has systematically avoided requesting a formal authorization for its action. It has simultaneously sought, however, to portray that its actions are consistent with the War Powers Resolution. The combination of these actions has left many Members of Congress, as well as the American people, frustrated by the lack of clarity over the Administration’s strategic policies, by a refusal to acknowledge and respect the role of the Congress, and by a refusal to comply with the basic tenets of the War Powers Resolution….
As I reported on March 21, and at my direction, consistent with a request from the Arab League, and as authorized by the United Nations Security Council under the provisions of U.N. Security Council Resolutions 1970 and 1973, U.S. military forces commenced operations on March 19, 2011, to prevent a humanitarian catastrophe and address the threat posed to international peace and security by the crisis in Libya and to protect the people of Libya from the Qadhafi regime. The initial phase of U.S. military involvement in Libya was conducted under the command of the U.S. Africa Command. By April 4, however, the United States had transferred responsibility for the military operations in Libya to NATO and the U.S. involvement has assumed a supporting role in the coalition’s efforts. Since April 4, U.S. participation has consisted of: (1) non kinetic support to the NATO led operation, including intelligence, logistical support, and search and rescue assistance; (2) aircraft that have assisted in the suppression and destruction of air defenses in support of the no fly zone; and (3) since April 23, precision strikes by unmanned aerial vehicles against a limited set of clearly defined targets in support of the NATO led coalition’s efforts. Although we are no longer in the lead, U.S. support for the NATO based coalition remains crucial to assuring the success of international efforts to protect civilians and civilian populated areas from the actions of the Qadhafi regime, and to address the threat to international peace and security posed by the crisis in Libya. With the exception of operations to rescue the crew of a U.S. aircraft on March 21, 2011, the United States has deployed no ground forces to Libya….
Exhibit 8: Challenging the President on War Powers, from Rep. Dennis Kucinich (D-OH), 6/16/11, excerpt:
“Today, I joined with nine other Members of Congress from both parties in filing a lawsuit in federal court against President Barack Obama that challenges his decision to take us to war in Libya without Congressional approval.
The President has a legal obligation to obtain Congress’s authorization before leading our country into war as required by Article I, Section 8, Clause 11 of the United States Constitution and the War Powers Act. Since the President failed to do this before ordering our armed forces into action in Libya, we believe the law was violated and we have asked the courts to protect the American people and one of our founding principles: separation of powers. This is about more than party politics or whether you support or oppose our President’s policy in Libya – it’s about protecting our constitution and the rule of law….
Exhibit 9: Ralph Nader, “Waging Another Unconstitutional War,” Reader Supported News, 6/18/11, excerpt:
…the widespread daily bombing of Libya, the strict naval blockade of Muammar Gadhafi-controlled Libya, the destruction of Gadhafi’s family compound and tent encampment in the desert - killing his son and three grandchildren - and the deployment of special forces inside Libya is not a “War.” It is, in the Obama White House’s evasive nomenclature, just a “time-limited, scope-limited military action” Can you find that phrase in the Constitution?
If Obama used the word “War,” he would have a more difficult time explaining to Congress and the American people (three out of four oppose this war) why he did not (1) seek a declaration of war under Article I, section 8, clause 11 of the Constitution, or (2) seek Congressional authorization for appropriated funds to further the war with our NATO co-warriors, or (3) comply with the deadlines of the War Powers Resolution. He threw all three lawful restraints on his presidential unilateralism overboard….
You could find a lot more evidence and opinions, but you get the idea.
You make up your mind now.
If you want more evidence and opinions, see:
Charlie Savage and Mark Landler, “White House Defends Continuing U.S. Role in Libya Operation,” New York Times, 6/15/11
“What Is the War Powers Resolution of 1973?” at PBS Newshour, PBS.org, 6/15/11
Conor Friedersdorf, “Obama Fails to Justify the Legality of War in Libya,” The Atlantic, 6/16/11
Charlie Savage, “2 Top Lawyers Lost to Obama in Libya War Policy Debate,” New York Times, 6/17/11
Stephen M. Walt: “Obama, We’re At War. Stop Insulting Us, Foreign Policy, 6/17/11
“War Powers Resolution,” Wikipedia
and much more.