US action in Libya - Legal or not? War Powers Act of 1973 reviewed

But they are not offensive combat operations, they are preventative measures against the breaches of the peace

[Neptunus Rex]

As the War Powers Act of 1973 was an alteration or amendment of consititutional authority of the POTUS as defined in the Constitution of the United States, passage of a mere "act" by Congress lacks the authority to mandate it. It never was ratified by the States as required in the Constitution.

It was a bulls**t power grab by the Congress.

[VonHesse]

Originally Posted by Tribesman

But they are not offensive combat operations, they are preventative measures against the breaches of the peace

Ah, but they are offensive operations. You know it, and I know it. I believe even the Pentagon is defining it as a "kinetic military engagement"; weapons striking enemy targets. Also, we (Ireland's in the UN, right?) are the agressors. By any reasonable definition, that makes these offensive military operations. Now, that doesn't mean that the we aren't frantically trying to spin this into a humanitarian or peacekeeping effort, but facts remain facts. But then again, you already knew that, didn't you?

[Platapus]

Originally Posted by CaptainHaplo

Platapus,

The key phrase in section 2 that your struggling with is "only pursuant to."

Pursuant means following - or coming after - NOT before.

Please - review the meaning of PURSUANT
http://www.google.com/dictionary?q=p...ed=0CB8QmwMoAA

Pursuant means "According to a prescribed method or some authority."
http://legal-dictionary.thefreedictionary.com/pursuant

Personally I would not use google for legal definitions. As I posted, legalese can be confusing.

If you really think about it, if the president would need "specific statutory authorization" before following the War Powers Act, there would be no need for the War Powers Act.

The War Powers Act IS the way the president gets the specific statutory authorization to commit military forces. It just gives the congress 60 days to research, write, vote, and publish the "specific statutory authorization".

This is described in Title 50 U.S.C section 1544 paragraph b (1) (or Section 5 if you are reading the act from http://avalon.law.yale.edu/20th_century/warpower.asp.)

[Unless Congress] "has declared war or has enacted a specific authorization for such use of United States Armed Forces, "

Originally Posted by tater

Legal types: is the War Powers Act in itself constitutional in the first place?

Yes, the War Powers Act is constitutional. Article 1 Section 8 of the US Constitution states that congress has the power "To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof."

http://topics.law.cornell.edu/consti...iclei#section8

The United States Congress passed, and the President signed Title 50 1541-1548

Under the rules of statutory construction, all laws are presumed to be constitutional until it is demonstrated that they are not. So far, no one has been able to demonstrate to the Supreme Court that the War Powers Act is unconstitutional.

[tater]

I don't think the "obligation" argument flies. The UN can vote to allow military action, but I don't think they can compel such action, particularly when any country with an air force can do the work. If the US were ever obligated to do, well, anything by the UN, that's proof we need to simply leave that broken organization.

I'm more inclined to think that the War Powers Act is Congress overstepping its power. The Congressional power WRT longer term uses of force without a war declaration is to close the purse strings.

<EDIT> the last bit was before I read your argument about it being constitutional...

In that case, I don't see any way the current use is legal...

[Armistead]

It's another gray rule so a pres could act without congress.....Just when was the last time congress declared war....?

We've turned into a world police power run by a one man show.

[tater]

Interesting read:

http://www.fas.org/man/crs/RL32267.html#_1_11

@ Von Hesse

Ah, but they are offensive operations. You know it, and I know it.

Next you are going to claim that little disagreement in Korea was really a war.

Also, we (Ireland's in the UN, right?) are the agressors.

Ireland is as usual right up to its legal limit on foriegn deployments split between 10 main ones and lots of little ones.
As for being the agressors, no that was set out in 1970 and finalised in 1973 when Daffy didn't comply.

By any reasonable definition, that makes these offensive military operations.

Since when have international relations and diplomatic language been covered under "reasonable definition"?

But then again, you already knew that, didn't you?

Me? no, never

[Platapus]

Originally Posted by tater

I don't think the "obligation" argument flies. The UN can vote to allow military action, but I don't think they can compel such action...

A very good question!

Under the concept of Sovereignty, no country or extra-national organization, can physically force any country to do anything. So the short answer is that the UN can't physically force any country to do anything. This is why many (not all) complaints about the UN are unjustified.

But let's look at "obligation" from a treaty or legal standpoint, as the UN is, effectively, a treaty structured organization.

The Charter of the UN describes the rules of how the UN operates.

Article 25 states

The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.

But that really does not answer your question. Article 25 only means that every member nation needs to accept what the Security Council says. This is one of my major disagreements with the UN by the way. The Security Council is the only body in the United Nations that has, by treaty, the authority to legally compel other nations within the powers and limitations of the charter.

Let’s look at Article 43 (in part)

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.

This article means that member states need to make portions of their military capability available to the United Nations Military Staff Committee. But….

Article 44 states

When the Security Council has decided to use force it shall, before calling upon a Member not represented on it to provide armed forces in fulfilment of the obligations assumed under Article 43, invite that Member, if the Member so desires, to participate in the decisions of the Security Council concerning the employment of contingents of that Member's armed forces.

This means that any member nation NOT on the security council must be allowed to participate in, and vote on, whether their military will be involved. No nation’s military can be compelled to participate without that member nation’s permission. Which makes sense when you think about it.

So what this boils down to is that when the Security Council votes for military action, they are only obligating the militaries of the member states on the Security Council. If the Security Council wishes to use the military forces of a nation not currently on the Security Council, a special meeting has to be made. Most of the time the Security Council does not want to do this.

So who is on the Security Council?

Well there are the Permanent Members

China
France
Russian Federation
United Kingdom
United States

The non permanent members are

Bosnia and Herzegovina
Brazil
Columbia
Gabon
Germany
India
Lebanon
Nigeria
Portugal
South Africa

So these 15 nations are the only ones immediately required to participate in the military actions over/in Libya.

Now as to why the US is involved….

So, if the US is to follow treaty laws, then yes, by the United State’s actions on the Security Council, the US is obligated to participate. How much participation is that is strictly a US decision. In my opinion, the US seems a little too eager to participate in military actions for my liking. But then a large amount of our economy is in the Military Industrial Complex.

Did this answer your question?


[Platapus]

Originally Posted by Armistead

It's another gray rule so a pres could act without congress.....Just when was the last time congress declared war....?

We've turned into a world police power run by a one man show.

Absolutely right. The President of the United States has the right to "start a war". The President can start attacking any nation he/she chooses. If, with in 60 days Congress decides to stop it, it will be up to the nation we attacked whether there is or is not a war.

Something to think about the next time there is an election.

[tater]

It did, but in arguing to Congress (had they done so), that ALL the action was requisite under treaty obligations seems absurd. Congress could come back and simply say that in order to meet our obligations, we could simply have provided intel, for example, and no actual forces. Or a single air-tanker.

Functionally they compel nothing. What has the PRC and Russia contributed, exactly? Scorn?

[Platapus]

Originally Posted by tater

It did, but in arguing to Congress (had they done so), that ALL the action was requisite under treaty obligations seems absurd.

I would agree. The US seems pretty eager to kill people these days.

[VonHesse]

@ Tribesman;

Yeah, ya got me . I guess there's some confusion because on the one hand, I'm looking for legal and technical definitions authorizing the use of force, while at the same time, I'm using lay-terminology to define 'offensive', and even 'war'. Again, my definition of 'offensive', was referring to what a reasonable person would define it as. And, yes, I think any reasonable person would call Korea a war, but that might just be the difference between 'reality' and 'legality'. Thanks for reminding me to keep the two views seperate whilst engaging in polite conversation.


@ Tater & Platapus;

I didn't mean to imply that because of our involvement in the U.N. and the Security Council that we were now "obligated" or required to provide military assets for use in Libya just because a resolution was passed. I just wonder if our involvement allows the President the authority to voluntarily commit forces at his personal discretion.

It seems like it might - the whole "making forces available" line seems to imply that by ratifying the U.N. charter treaty, the US Congress has already given it's approval for any military force used in carrying out Security Council resolutions - and that the "specific congressional statute" required under the WPA could be the same U.N. charter treaty.

I just cant see any other position for the Administration to take if they're going to try to make this action fit within the framework of the War Powers Act.

[Bilge_Rat]

The WPA is on weak constitutional ground, but to see that, you have to look at the Constitutional and historical context.

1. the Constitution

The President is the Commander in Chief of all US forces and can order them in at any time and in any place in the world without any other authorization.

Congress has a general power of oversight since it controls the purse strings and therefore funding of the Armed Forces or of any specific military operation. It also has the power to declare war.

2. the history

President Lincoln fought the entire civil war without a formal declaration of war or express congressional approval. He took the position it was an internal matter and he had all the authority he needed under the Constitution. At the time, no one (well no one in the North ) questioned his authority to act.

President Truman also fought the entire Korean War without a formal declaration of war or express congressional approval. He took the position the UN resolution was all he needed and that it was not a "war" but a "police action". No one questioned his authority either.

You also have to remember the WPA was adopted by a very liberal Congress in 1973, right after Vietnam and during Watergate. It was very much a political message that was being sent to President Nixon.

3. the WPA

Congress can only adopt laws which are within its powers. Congress cannot adopt laws which restrict the powers of the President under the Constitution. Congress can however, adopt laws that regulate how its own powers are exercised.

so, if we interpret the WPA to mean that the President can order troops into action at any time, but that he has to come back to Congress within 60 or 90 days to obtain approval, it is probably valid.

However, if we interpret the WPA to mean that the President is restricted in his use of troops or that he has to obtain prior Congressional approval, then it is unconstitutional and invalid.

4. summary

So back to our case:

The US Constitution grants to President Obama all the power he needs to commit US forces to combat in Libya.

The only real power Congress has is to cut off funding of the operation if it does not approve.

[CaptainHaplo]

Platapus,

Try relooking at the definition your own link provided since it helps to read the whole thing:

"To follow after or follow out; to execute or carry out by reason of something"

Lets plug that into the language, and see what we get.

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 carried out by reason of (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.

Perhaps you like this version better?

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 following after (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.

Lets go even deeper - since to be entirely accurate we must deal with "pursuant to" which means "according to" - in this case the conditons described.
http://legal-dictionary.thefreedicti...om/pursuant+to

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 "according to" [the following conditions] 1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.


No matter how you try to parse it, the WPA is clear on under what conditions or circumstances the President is allowed to deploy forces. You can argue that the WPA is unconstitutional if you wish, but the whole PURPOSE of the WPA was to insure that the president did not get the US into a war without causus belli OR the consent of Congress.

Look at the timeframe - 1973. Any idea what was ending then? The US signed the Paris Peace Accords in January of that year, effectively ending the Vietnam conflict. How did we end up in Vietnam? By deployment of force without the consent of Congress and without a specific causus belli (though the 1964 Gulf of Tonkin "incident" was an attempt to provide some). The US was involved in Vietnam as early as 1959 - and US troops hit soil without Congressional approval. Congressional approval was only secured after Tonkin and the Vietnam war only ended because Congress pulled the purse strings. The WPA was a direct result of Presidential actions regading Vietnam, and to a lesser extent, Korea. It's sole purpose was to limit the executive power to commit troops without oversight. There is no other reason for the WPA to even exist.

Now we could debate whether or not that's constitutional (which it is), but thats a different discussion.

Bilge_rat - If the Executive felt the law was unconstitutional, it would have been challenged decades ago. The fact it has never been challenged speaks volumes. In fact, Presidents have either acceded to is (as did Bush) or ignore it completely (as did Clinton).

Finally, a note on Article 2, section 2, clause 1 of the US Constitution:

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States

While it could be debated, for the greater part of our history - up until Korea - this was interpreted as the President is in charge once conflict starts. The key phrase is WHEN CALLED - and originally it was set up so that in a federal matter, Congress would AUTHORIZE the use of force at which time the President would run the war. The war powers act of 1973 is merely an attempt to return to that state by defining under what conditions the President may execute hostilities - both with or without congressional approval.