Obama War Powers Treachery and The Founders’ Remedies

Signing-constitutionAs most know by now, Charlie Savage at the New York Times let loose a stunning blockbuster of an expose of the conduct of Barack Obama and his inner circle in relation to the Libyan war vis a vis the War Powers Resolution:

President Obama rejected the views of top lawyers at the Pentagon and the Justice Department when he decided that he had the legal authority to continue American military participation in the air war in Libya without Congressional authorization, according to officials familiar with internal administration deliberations.

Jeh C. Johnson, the Pentagon general counsel, and Caroline D. Krass, the acting head of the Justice Department’s Office of Legal Counsel, had told the White House that they believed that the United States military’s activities in the NATO-led air war amounted to “hostilities.” Under the War Powers Resolution, that would have required Mr. Obama to terminate or scale back the mission after May 20.

But Mr. Obama decided instead to adopt the legal analysis of several other senior members of his legal team — including the White House counsel, Robert Bauer, and the State Department legal adviser, Harold H. Koh — who argued that the United States military’s activities fell short of “hostilities.” Under that view, Mr. Obama needed no permission from Congress to continue the mission unchanged.

Let’s be crystal clear as to what happened here: The Attorney General, Head of the Office of Legal Counsel and the General Counsel for the Pentagon/DOD all listened to Obama’s plan to flat out ignore the War Powers Resolution (50 U.S.C. 1541-1548), and the Article I power it represents, and they unanimously said it was untenable and illegal in the face of the War Powers Resolution.

Mr. Obama knows the War Powers Resolution exists, does not challenge its viability or Constitutionality and, against the direct opinion and advice of the three most germane attorneys in the United States Government, has just blithely and unilaterally blown it off. There are nine fairly short provisions in the statutory delineation of the “War Power Resolution” and, despite the yammering from the Administration and dithering by the press, they are actually remarkably clear in their intent and letter.

A criminal can nuance, excuse and rationalize himself around pretty much every statutory criminal provision, but society as a whole has no problem looking at the statute and seeing that there is offending conduct. And so it is here; Obama has thrown up sophistry, excuse and self indulgent rationalization. But any honest review of the WPR yields the unmistakable conclusion Obama is in direct violation, and has been from the outset. Congress has been crystal clear that they have NOT authorized the Libyan war participation.

Make no mistake, this is simply a stunning act of the most basic type of executive branch usurpation of power and illegal act that the Founders contemplated when they included the impeachment power and provision into the Constitution. As Alexander Hamilton stated in Federalist Paper Number 65:

A well-constituted court for the trial of impeachments is an object not more to be desired than difficult to be obtained in a government wholly elective. The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.

Whether or not there should be an impeachment investigation, or what the scope of such would be, is a discussion for another day and not the subject of the instant post. The point here is simply that the conduct we are discussing here is precisely the nature and type of which the Founders contemplated when adopting the separation of powers and impeachment provisions. Not to mention placing war making authority within the Article I scope of Congress.

The point here is that failure to at least have that discussion, and take a sober look at the facts at issue, and ourselves in the mirror, is to fail the Constitutional form of representative democracy we profess to love. It is to fail our basic duties as participatory citizens; it is to fail the nation.

Professor Jack Balkin gave an even handed, but truly damning at heart, analogy to the recent ills occasioned by the Bush/Cheney Administration:

It is instructive to compare President Obama’s actions with those of his predecessor, George W. Bush, who sought legal justification for his decision to engage in waterboarding and other “enhanced interrogation techniques,” which constituted torture. Bush wanted above all to be able to deny that he was violating the anti-torture statute and other laws and treaties. So he found a small group of lawyers in the OLC, headed by John Yoo, and asked for their opinions. This short-circuited the usual process through which the OLC collected views from various agencies and then used them to develop legal opinions for the executive branch. That is, Bush (assisted by his Vice-President, Dick Cheney) arranged matters so that decisions about waterboarding and enhanced interrogation techniques would be in the hands of lawyers he knew would tell him yes; the normal process of collating opinions was short-circuited and other lawyers were effectively frozen out.

Obama’s practice is different, but it has disturbing similarities. Normally, Obama would have asked the OLC for its opinion, and as noted above, the OLC would have polled legal expertise in various agencies, consulted its precedents, had long discussions, and then come up with a scholarly opinion that is normally binding on the executive branch. Instead, Obama routed around the OLC, asking for opinions from various lawyers, including the White House Counsel and the Attorney-Advisor for the State Department. It is difficult to escape the conclusion that from the outset Obama was prospecting for opinions that would tell him that his actions were legal, and once he found them, he felt comfortable in rejecting the opinion of the OLC.

Obama’s strategy, like Bush’s, also short circuits the normal process of seeking opinions from the OLC; it simply does so in a different way.

By bypassing a careful set of procedures designed to produce careful legal opinions, George W. Bush was able to say that he was following the OLC, or at least a rump of the OLC. But he was effectively undermining the OLC’s function as an honest broker of executive branch opinions. Obama also bypassed this same careful set of procedures by canvassing various lawyers until he found opinions he liked better than the OLC’s. If one is disturbed by Bush’s misuse of the process for vetting legal questions, one should be equally disturbed by Obama’s irregular procedures

Ouch, that may leave a mark, as does the spot on discussion of OLC manipulation by Jack Goldsmith at Lawfare. And Glenn Greenwald at Salon makes a similarly compelling analogy of the Obama WPR conduct with the Constitutional crisis presented by the unconstitutional and illegal surveillance program of Bush Administration that blew up in the night of near legal mutiny of the “Ashcroft Hospital Incident”.

Balkin, Goldsmith and Greenwald are all correct to analogize and discuss the Obama WPR treachery in terms of the Bush/Cheney precedent. But, as much as I respect them and their discussion on this issue, I think all three sell the situation short. In a critical way. The Bush/Cheney precedent, whether as to the torture component or the surveillance component, involved an administration that twisted the law to suit their ends; but give the Bushies their due, at least they made the surface attempt at having the patina of a legal imprimatur. Obama has, on quite a different and much worse hand, arrogantly and belligerently, in your face and finger in your eye, violated an important existing law that he does not challenge the Constitutionality of. Obama thus admits the validity of the War Power law and in the same breath says with impunity that he is above it and not subject to it.

The War Power Resolution treachery on Obama’s part is actually materially worse than what the Bush brigade did. As Glenn said:

All that aside, what is undeniable is that Obama could have easily obtained Congressional approval for this war — just as Bush could have for his warrantless eavesdropping program — but consciously chose not to, even to the point of acting contrary to his own lawyers’ conclusions about what is illegal.

Other than the same hubris — and a desire to establish his power to act without constraints — it’s very hard to see what motivated this behavior. Whatever the motives are, it’s clear that he’s waging an illegal war, as his own Attorney General, OLC Chief and DoD General Counsel have told him.

Indeed, that is exactly where we are, and the most troubling aspect is there is no question whatsoever that Congress would have pliantly given Obama the requisite authorization sufficient to give at least nominal legal cover for the American participation in the Libyan hostilities. But, instead, Mr. Obama chose to arrogantly and belligerently usurp Article I power on what is likely the most fundamental and germane aspect underlying the separation of powers in the Constitution – how the nation goes to war and inflicts death on another nation’s citizens.

That is where we are today. I am sure laying it out in these terms will unleash the dogs of whine from fawning Obama acolytes and partisan hacks who blindly think only of partisan interest in the upcoming election. But those trifling concerns shrink in the face of the Congressional oath to protect and defend the Constitution and the corresponding duty and obligation on American citizens to demand and insure they do just that.

Without saying Obama should be impeached, failure to at least have the discussion made in those terms is dereliction of constitutional duty by people, pundits and Congress. This critical issue is not yet getting that kind of play, but it should as it is absolutely why the founders placed the provision in the Constitution to start with.

If our society and political discourse cannot seriously discuss impeachment for the type of executive perfidy demonstrated by Barack Obama in relation to Libya and the War Powers Resolution, and could not discuss it during the Bush/Cheney crimes, then the impeachment provision of the Constitution has no meaning and should be stricken.

Seriously, those are the stakes. A discussion, even an investigation, does not mean there has to be an impeachment conviction, or even that articles of impeachment should even be filed. But the discussion must be had if there is to continue to be integrity to the most fundamental terms and conditions of the United States Constitution.

Bmaz is a rather large saguaro cactus in the Southwestern Sonoran desert. A lover of the Constitution, law, family, sports, food and spirits. As you might imagine, a bit prickly occasionally. Bmaz has attended all three state universities in Arizona, with both undergraduate and graduate degrees from Arizona State University, and with significant post-graduate work (in physics and organic chemistry, go figure) at both the University of Colorado in Boulder and the University of Arizona. Married, with both a lovely child and a giant Sasquatch dog. Bmaz has been a participant on the internet since the early 2000’s, including active participation in the precursor to Emptywheel, The Next Hurrah. Formally joined the Emptywheel blog as an original contributing member at its founding in 2007. Bmaz grew up around politics, education, sports and, most significantly, cars; notably around Formula One racing and Concours de Elegance automobile restoration and showing. Currently lives in the Cactus Patch with his lovely wife and beast of a dog, and practices both criminal and civil trial law.
153 replies
  1. Jim White says:

    Without saying Obama should be impeached, failure to at least have the discussion made in those terms is dereliction of constitutional duty by people, pundits and Congress.

    It’s really remarkable that after Pelosi immediately took impeachment “off the table” once she became Speaker, you can now accurately forecast that no real discussion of impeachment will be forthcoming in the current Congress even though Obama is so blatantly choosing to break the law. When all three branches of our government openly flout their Constitutional duties (I’ll throw in the Roberts “Corporations R Us” court as not needing discussion) and show no respect for the law, our country is careening toward the type of lawlessness one normally sees only in third world countries. Good thing we have the strongest economy in the world.

    Oops, maybe we really are third world at this point.

  2. scribe says:

    If flying missile-launching drones and zapping targets by remote control does not constitute “hostilities” when it’s directed at Libya, a country with which we are at peace (technically speaking), when the President says it does not, we have to ask ourselves what does that kind of law-ignong behavior do to posse comitatus (a law, FWIW) when those same drones start zapping stuff here at home?

    Posse comitatus, generally speaking, prohibits using the military for domestic law enforcement. If drones zapping targets and killing people is not “hostilities” for Libya purposes, then arguably posse comitatus would not prohibit (to pick a hypothetical out of the air) military drones zipping Hellfire missiles into street demonstrations or blasting the house of some designated bad civilian, within the territorial limits of the US of A, all of it arguably being OK and not an impeachable offense (much less a crime) because the President cherry-picked a whore lawyer who gave him the opinion he wanted to hear.

    Domestic surveillance from drones has very little to do with this – this is groundwork for martial law, I’m sorry to say.

    • Fractal says:

      scribe, sorry to be so late to pick up your concept. I agree that Obama probably is denying that the Libya war actions amount to “hostilities” under the War Powers Act because he is desperate to avoid a constitutional rule that using drones to kill people remotely is also “hostilities” for the purposes of the War Powers Act. He wants to be allowed to keep killing with his drones. He is desperate to avoid a separate branch from interfering with his drone-killing.

      If the War Powers Act is recognized as including use of drones to kill enemies remotely in Libya, he will be forbidden to keep killing people with his drones in AfPak or Iraq, once we do finally end those occupations. If drone-killing equals “hostilities,” he can’t even use the CIA or JSOC to use his drones to kill enemies in Yemen or Somalia or Indonesia. [At least not beyond the statutory time limits of 60 or 90 days.]

      So I feel sure Obama will go to the mat to protect drone-killing in Libya. Which is why the Attorney General and the House of Representative must go to the mat to stop him. They must spend the remainder of his term(s) fighting to stop his use of drones in Libya, to retain any shred of constitutional control over the Preznit & the military.

  3. bobschacht says:

    Thanks, bmaz.
    You make an excellent point, and provide a nice set of correlating references.
    The only thing missing is an evaluation of Speaker Boehner’s complaint about Obama’s actions vs. the WPR. Is that going anywhere?

    Bob in AZ

  4. Ruth Calvo says:

    With the Supreme coathangers on the court, I suspect that another factor at work here is the obvious quandary for right wing justices faced with either limiting presidential powers or affirming their usual anti-constitutional reign. While I hate seeing a violation of the constitution, and a war, what a playout this could become, quite the circus.

  5. Mary says:

    I’m about to slip back into my project from heckfirendamnation, but before that – I wonder about your reference to the AG, bmaz. He is kind of prominently not mentioned in the lineups. I’m guessing he did what he said he was going to do before – – showed his leadership by taking no stand and telling Obama that he’d just support whatever Obama decided. That’s been his MO, when he takes time away from his ladle to have an MO>

    • Cynthia Kouril says:

      No Mary, Holder backed up his OLC. So it’s AG, OLC and DOD GC on one side of the issue and WHC and State GC on the other.

      The Goldsmith article makes clear that the view expressed by Koh (the State GC) in this istance is inconsistent with the views he expressed in academia. This time, of course, Koh was pressing a client’s view, not his own.

      Bob Bauer, a gentleman of great intelligence and good will–I really like him, is nonetheless, not very experienced in this area of law and the traditional role of the WHCounsel is not to tell the president what he can or can’t do (that’s OLC’s job). The WHCounsel’s job is usually to the President what arguments are available to him to do whatever it is he is planning to do.

      The President then decides whether the arguements the WHCounsel came up with are compelling enopugh to give him a comfort level empoying them.

      • powwow says:

        The Goldsmith article makes clear that the view expressed by Koh (the State [Legal Adviser]) in this instance is inconsistent with the views he expressed in academia. This time, of course, Koh was pressing a client’s view, not his own.

        Lest there be any confusion about what the actual, personal views of Harold Koh are in this, or any, matter on which he opines or engages while serving the American people as Legal Adviser to the State Department:

        In a speech [on Friday, 6/17, to the American Constitution Society’s annual convention] that lasted nearly 40 minutes, Koh touched on topics that also included his confirmation process and the role of government lawyers in situations where personal beliefs clash with policy.

        […]

        Koh, a former dean of Yale Law School, built his speech on what he called his guide posts for how a lawyer should live life.

        […]

        Koh dedicated part of his speech to discussing the intersection of personal views and policy.

        […]

        Koh said he can defend the international lawfulness of policies that he would not personally advocate as a matter of human rights policy. “If I wasn’t prepared to make the defense, I shouldn’t have taken the job,” he said.

        As a lawyer, Koh said, he defends the government’s right to choose legally available options. First, he said, remove the illegal option from the mix of choices. “Like torture,” Koh said. If an unlawful option comes up, “you should say, ‘No, it’s not legally available’ and not try to figure out a way to pretend that it is,” Koh said.

        That excerpt is from this Blog of LegalTimes post.

        Koh’s personal position on the President’s (take your pick: absurd, brazen, incredible) “hostilities” redefinition, which Koh propounded, or endorsed, was further clarified by this transcription of the Koh ACS speech video, which was made by commenter sysprog and posted in Glenn Greenwald’s thread yesterday:

        Harold Koh [at 34:40]: Sometimes, people ask me […] “isn’t it hard to be a government lawyer, having to say all those things you don’t believe?”

        […] I never say anything I don’t believe.

        Why should I – – I have tenure.

        […] If you hear me say something, you can be absolutely sure that I believe it.

        […] If I say it, then I believe it.

        – Harold Koh 6/17/2011 – – rough transcript by sysprog

        Those remarks by Harold Koh last Friday were made two days after Koh’s view – defining as non-hostile uninvited American bombing, and American-supported bombing, of another nation’s military infrastructure, and concluding that such bombing therefore does not represent armed-force “hostilities” under the War Powers Resolution, nor “war” under the Constitution (despite our commission of, or participation in, obvious acts of war, as defined by international law, such as a naval blockade of Libya) – was selected by the President, over the contrary advice of the Attorney General, the DOJ’s Office of Legal Counsel, and the General Counsel for the Department of Defense, for submission to Congress in a one-paragraph legal analysis in the middle of a 38-page presidential-war-justifying report.

        • bmaz says:

          Did you note that buried lede in the BLT article where Obama insiders asked Koh “to apologize” during his nomination process for his prior views in academia?? Jeebus, that is pretty telling.

          • lysias says:

            What’s the point of refusing to apologize if you then instead walk back everything you said that they want you to apologize for?

            • bmaz says:

              Heh, I am not saying it was a distinction with a lot of meaning as to Koh; but a fairly interesting bit of news as to the craven nature of the Obama insider team in that early process. If they wanted Harold Koh to apologize, and insure he would do what he was told to do, what in the world do you think they said to Dawn Johnsen??

          • powwow says:

            I saw that, yes. It’s dwarfed for me, though, by the dangerous, self-serving arrogance and abuse of power displayed by the President (hiding behind a couple of legal advisers) in pretending that indisputable acts of war under international law somehow don’t rise to the level of “hostilities” under the War Powers Resolution – a law that’s wholly concerned with enforcing the proper division of Constitutional war powers between the Legislative and Executive Branches of government.

            To quote Michael Lind from March 21st (when Congress should have been tackling this issue, head-on, immediately upon learning of the unauthorized commencement of the President’s optional, violent, destructive attacks, conducted at his order by our nation’s Armed Forces, on the national infrastructure and armed forces of Libya), as linked by spanishinquisition @ 76 above:

            The Constitution cannot be amended by statute. It cannot be amended by treaty. It cannot be amended by precedent. It cannot be amended by public opinion poll. It cannot be amended by election result. It cannot be amended by humanitarian pity. The U.S. Constitution can only be amended by the procedures set forth in Article V of the Constitution itself.

            People are free, if they wish, to propose a 28th Amendment to the U.S. Constitution that would read as follows: “The President of the United States shall have power to initiate war on his own authority, without the prior approval of Congress; provided, however, that Congress may refuse to appropriate funding for the continuation of a war the president has begun.” Such an amendment would create the situation that many people falsely claim to be the case today. Until such an amendment is ratified and goes into effect, however, the law of the land remains what it has always been, and President Obama’s war in Libya, even if it is moral, prudent and legally authorized under international law by the Security Council, is plainly unconstitutional.

            • bmaz says:

              Heh heh, agreed as to the dwarfing, that is why the post is on that and I mentioned the other in a passing comment! Seriously, it just gets depressing after a while.

  6. lysias says:

    What the heck is up with Koh? This is certainly not the reputation he had when he was Dean of Yale Law School.

    • MadDog says:

      When you are hoping the next Supreme Court nomination has your name on it, a blowjob for your boss is at the top of your “To Do” list.

  7. 4jkb4ia says:

    Great post, bmaz, to sum up everything that was done. I really mean that. I would go and show John but there are at least two good reasons not to, not least that I am not wasting my life over there today. You know, today I am not going to have drug of choice, etc. (There are some specific commenters who could take up the whole day with this.)

    This gives a different meaning to the warnings from Graham and McCain. Graham and McCain are saying that if the House does choose to impeach, this is not a partisan endeavor. It cannot be identified with the Republican Party as a whole. They could also be saying that there aren’t the votes to convict–the problem that loomed over Bush-era impeachable offenses.

    • bobschacht says:

      They could also be saying that there aren’t the votes to convict–the problem that loomed over Bush-era impeachable offenses.

      I hate this line of reasoning on impeachment, which is being treated ass-backwards like an AG deciding whether or not to bring an indictment. As we saw during Watergate, the significance of impeachment is the public process of examining the evidence, and the public education about core values that results.
      The basic problem of the Clinton impeachment is that it was conducted on the AG model, and what little public process there was persuaded the public that a trial in the Senate was NOT warranted (but the Republican blood-lust pushed it through anyway.) The lesson of the Clinton impeachment should not be that the House impeachment was not warranted, but rather that the referral to the Senate for trial was ill-advised.

      The Pelosi attitude towards impeachment was equivalent to an AG decision to not indict even before empaneling a grand jury. The difference being of course that a grand jury is empaneled behind closed doors, so that there is no public process.

      Anyway, what is being ignored here is the importance of the public process.

      Bob in AZ

  8. MadDog says:

    There were raging woodies in evidence all weekend at Chez Cheney, Addington, Gonzales and Yoo.

    Deadeye was heard to lament: “If only he was a Repug…sigh!”

  9. Mary says:

    I missed the whole second page in the online version of Savage’s story – where Holder is mentioned. Sorry – it’s not a full page, but it does get Holder and a DOJ Spox in there too.

    • Fractal says:

      right. very, very important. Saturday Night Massacre narrowly averted. But why? Or how? How can Holder continue to serve when his precise legal advice on a constitutional separation-of-powers issue is repudiated by the Preznit?

  10. Mary says:

    The eleventy dimensional chess explanation, of course, is that this is causing GOPers to break ranks some. McCain and Graham are out there having snit fits over how to both say Obama is a freak who’s unfit for office, and yet also a guy we should let roam the world bombing on whim, unchecked and with no oversight, because it’s the American way to find captials of third world countries and bomb them until we kill children. Something like that.

    Heck, if Boehner actually follows through on any of his threats, I’ll buy an orange t-shirt in his honor.

  11. PeasantParty says:

    IMPEACH! Let even Benito know that we will not stand for it.

    Tell banks and big oil, those free market lovin, get out of my business-no regulation entities to deal with their Libian free market! If anybody thinks that Obama is concerned about the people of Libya, you’re just wrong!

  12. Mary says:

    One more random observation – it was State’s GC, Taft, and his principal, Powell, who were excluded from the Bush Administration’s Principals’ meetings on torture and rendition (once the baton passed from Taft to a safely-in-the-torture-camp guy like Bellinger, they got more inclusive again.

    Amazing how the importance of a State Dept GC changes, depending on whether they are going to give the President what he wants or not.

    Re: Taft – I would agree on that one that Bush had a far better lawyer, at least for awhile, than Obma.

  13. lysias says:

    Is there a particular State Dept. interest in seeing this Libya mission succeed because, if it doesn’t, NATO will be on life support?

  14. rmwarnick says:

    This is just sad. The right-wing was printing “Impeach Obama” bumper stickers before the inauguration. Who knew there would ever be actual grounds for impeachment? Of course, after the failure to impeach President Bush, impeachment is off the table forever– maybe that was a factor in President Obama’s illegal decision to go to war.

  15. oldionus says:

    Even more than the Administration’s timidity on social issues, it’s this Administration’s embracing of…even distasteful enthusiasm for… the Security State philosophy and Imperial Presidency doctrine fostered primarily by previous Republican Administrations, going back to at least Nixon, that I find most disappointing and disturbing.

  16. Bluetoe2 says:

    Given the United Marionettes of America will not likely vote this fraud out of office perhaps impeachment is the last and only hope for the nation.

  17. earlofhuntingdon says:

    In the popular mind, “impeachment” is the same as conviction and removal from office. Impeachment is really the indictment, followed by trial; if found guilty, removal from office follows. I think the conflation of the indictment and conviction phases is useful to those who want to avoid altogether the reach of this essential constitutional check on excessive power.

  18. felicity says:

    Yoo/Bush ‘drew’ on Hamilton who argued that the president can do anything the Constitution does not expressly forbid. In a sense, this implies that the President ‘exists’ outside the Constitution.

    The President (now) including the executive branch has become a behemoth with control over law enforcement, the military, economic policy, education, the environment and most other aspects of national life – responsible to one person. (Ironically, in the case of this article at least, it has been suggested that the ‘unnatural’ power now lying in the presidency has happened because we have been on a war footage for so many years.)

  19. earlofhuntingdon says:

    The conflict in American government and society has become that between the haves and have nots, insiders and outsiders, the wealthy and everyone else. Avoiding public debate is of the essence, not a flaw, because it avoids recognition of that reality. The haves, their politicians and pet press, thereby avoid liability for that success in overturning decades of policy choices and the laws and institutions that gave them life.

  20. Bluetoe2 says:

    I think the Republicons would rather face Obama than Biden in 2012 therefore the likelihood of the House bringing charges against the fraud are slim. They know that if Obama were impeached and then convicted Biden would run to the left, finally giving the U.S. public a real choice They know that if given a real choice the country will move to the left so fast the plutocrats would suffer from whiplash.

  21. bayofarizona says:

    Given his feelings of the rule of law, why not instruct the Treasury to ignore the debt ceiling and continue to sell bonds? I think that recently passed appropriations take precedence in terms of which law the executive should follow, but even if he didn’t agree, why not increase executive power and get something done?

    • lysias says:

      You could certainly make an argument that, in a time of war, national security requires raising the debt ceiling.

  22. 4jkb4ia says:

    When the Savage story was read to him, my husband promptly understood, “They can cut off the funding”. And that works for the House perfectly well. The Senate need do nothing. The House has the power to withhold the funding contingent on the debt ceiling, and because Libya isn’t very popular they have a good chance of winning.

    The split in the Republican Party was already there, and if they get Democrats to join them then it doesn’t look like eleven-dimensional chess at all.

    It’s a good point that impeachment means disgrace, especially since no president has been forced out of office by a conviction. This disgrace would mean standing up for Congress’s warmaking power. So the Republicans can counter the eleven-dimensional chess by saying, “We want the election to be about the economy, and we keep the warmaking power for whoever we are going to elect”. “We avoid the distraction of talking about Iraq and Afghanistan which we landed Obama in, and which aren’t any more popular than Libya”.

    @bluetoe2: Not “the left”. “I opposed escalating the wars”.

  23. earlofhuntingdon says:

    OT, Wal-Mart wins big at the Supremes. In a sweeping opinion written by Antonin Scalia (whose son did so much under Bush II to destroy workers’ rights), the Supremes deny certification as a class to 1.5 million women, who accused Wal-Mart of sex discrimination. He concluded their situations and applicable laws were too diverse to justify class status.

    Those women can still sue Wal-Mart individually, but without the power of a class, only a handful will have the resources to sue the world’s largest employer and retailer. That will allow Wal-Mart to keep the benefits of any past discrimination, ensuring that more will continue. This effectively bars the courthouse door to these and many other women and workers and constituttes another significant win for the corporate world.

    In dissent, Justice Ruth Bader-Ginsburg,

    noted that 70% of positions paid by the hour in the retailers’ stores are women, but that women hold only 33% of management roles.

    “The plaintiffs’ evidence, including class members’ tales of their own experiences, suggests that gender bias suffused Wal-Mart’s company culture,” Ms Ginsburg wrote.

      • earlofhuntingdon says:

        I’d vote for that. In reality, what we’ll get is another faux liberal appeaser like Harold Koh on the Supremes, and more outright advocates for the right like Scalia, Roberts and Alito, which will help entrench corporate power at the expense of the citizenry.

  24. matthewj says:

    Of course you have to notice that in the very unlikely event Obama was impeached and convicted Joe Biden would take control. If this happens it would not be an accident, but because the PTB want it to happen for some reason or another.

    • frogman says:

      You’re right, of course.
      In fact, I don’t see why some previous posters seem to think Biden is to the left of Obama. They didn’t call ole Joe “the Senator from MBNA” for nothing. Remember, he was one of the few Demos to vote for the bill that made it harder for a human entity to declare bankruptcy. He’s earned his corporate chops many times over.
      But I believe there ain’t a snowball’s chance in hell the O man is going to be impeached anyway. The Repugs LOVE his war and imperialist stance and don’t want to do anything about the groundwork he’s laying so when they win – and they will, eventually – they can kick his warmongering bullshit up a notch. In fact, they don’t really believe he’s a Socialist, or a Kenyan, or a Muslim; that pablum’s for the suckers. They know he serves the same masters they do – the PTB as Matthew said.

  25. puppethead says:

    Now we know why Obama was so adamant about “not looking back” to prosecute illegal presidential actions.

  26. holeybuybull says:

    Perhaps this revelation, which supports Tariq Ali’s argument in “The Obama Syndrome”, will be the necessary evidence to refute the image of Obama as either a liberal or a progressive. Will it be sufficient to convince the lemmings (Obamabots) that their dear leader is the one making the disastrous decisions, rather than being a “victim” of bad advice? Don’t count on it.

  27. alan1tx says:

    “I find it as cool to be an Obama supporter. Having sat with him for two years is the White House and watched him — watching him work through some very difficult things with a lot of intelligence and grace, equilibrium. I, I have great admiration for him,” Obama’s chief campaign strategist told CNN.

    “The people who were participating in the campaign in 2008 weren’t involved n some sort of cult of personality. It wasn’t just about Barack Obama, it was the country and they cared deeply about this country,” Axelrod said in his answer a question about how to make Obama “cool” again.

  28. TalkingStick says:

    This represents my greatest concern about Obama. Beginning with his campaign for president I have had the sinking feeling he is at heart anti-democratic and an autocrat over impressed with his capacities. Instead of hoped for reversal of the Bush Cheney appropriation of dictatorial powers for the presidency he has done nothing more than affirm and expand them. This is in my view a particularly bald faced example.

    The more I think on this the less likely I will vote for him under any circumstance. We might have a better chance of reversal with some of the Republican candidates. Under him social changes promise and have been minimal as have attention to the environmental catastrophe. The economy makes no difference anyway as Obama has fully embraced the Rand Libertarian philosophy and practice..

  29. earlofhuntingdon says:

    The first function of impeachment is the preliminary review that justifies it – a prima facie finding that high crimes and misdemeanors were committed by an impeachable official – and the full investigation that would follow it. Congress, were it so inclined, could undertake much of that review in the normal course of performing Congressional oversight through committee hearings and investigations.

    The lack of an impeachment risk is only one expression of the reality that Congress has explicitly ceded much of its oversight power to the executive and doesn’t want it back, just as it has ceded much of its lawmaking power to K Street lobbyists, who now write (or veto) legislation and implementing regulations for the Hill and executive agencies. It makes life easier and is considerably more lucrative.

    • Fractal says:

      I think you’re right and that means it’s now the constitutional duty of the House and the House Judiciary Committee to open an investigation of the hostilities in Libya. I also agree with Cynthia @6 that Holder affirmed the opinion of his OLC. The NYT reported that Holder backed the OLC conclusion. The Attorney General just gave the Preznit the legal opinion of the Department of Justice that the Libya hostilities are unlawful under the War Powers Act. Unless the Preznit conforms to the law promptly, the AG is obligated to resign, as is his OLC chief. The AG cannot constitutionally aid and abet a violation of the Constitution; the AG is sworn to uphold the Constitution just as the Preznit is. If the Preznit violates, and the AG fails to resign, the House must investigate.

      The Democratic Party must repudiate a Preznit who commits illegal acts of war even when the Preznit was nominally elected as a member of the Democratic Party.

      I take a Large, no Butter, no Extra Salt ….

      • lysias says:

        Can complaints be made to the relevant bars for Koh, Bauer, and Obama (and maybe for Holder and the others too)? Could they be subject to disciplinary action by their bars?

        • Fractal says:

          Not yet. This is not “unethical” conduct, it is “unconstitutional” conduct. And Holder is currently adverse to the Preznit, advising the Preznit to conform to the law & the constitution, so the Preznit is the only person currently violating his oath of office. You could easily see the situation morph into an ethical or criminal violation when the Preznit begins obstructing justice, destroying evidence, and covering up his misconduct. Such as by firing the OLC lawyers & his AG who advised him he was acting unconstitutionally. THAT would be the “Saturday night massacre.” But I still believe Holder has a constitutional duty to resign whether or not the Preznit begins a campaign of illegal obstruction, unless the Preznit quickly conforms to the constitution and the War Powers Act.

        • spanishinquisition says:

          Obama “voluntarilly retired” his law license – he should be blocked from being able to unretire it.

          • TarheelDem says:

            Just like Clinton, after being President he’s is not going to practice law again. Show me a President who has.

          • Bluetoe2 says:

            When he was informed by the Wall Street banksters that they had a walnut paneled corner office waiting for him he probably figured he didn’t need no stinkin law license anymore.

  30. 4jkb4ia says:

    If Mitt is your one candidate who looks at this point as if actual people would vote for him against Obama, and foreign policy is not his strong suit (see how he made a damn fool of himself on START), why do you screw that up? It is a shame on a number of levels.

    @38: Right. But if he did not notify Congress, that’s an open and shut case. You don’t need hearings for that. You may need hearings to establish what “hostilities” mean with some independent legal experts.

  31. EternalVigilance says:

    Well written, bmaz. Thank you.

    “Obama has thrown up sophistry, excuse and self indulgent rationalization.”

    Not that this should surprise anyone who was paying attention back in 2006 when Obama came to the Senate.

    “The War Power Resolution treachery on Obama’s part is actually materially worse than what the Bush brigade did.”

    One could at least weakly argue that Bush was either too stupid or too crazy to know what he was doing (which would put his actions not into impeachment but 25th Amendment territory).

    Obama has no such defense – he is committing these acts with full awareness.

    “…dereliction of constitutional duty by people, pundits and Congress.”

    And here we have the core of the issue.

    The “law” is a concept that exists only in the mind. As such it is utterly meaningless in the physical realm.

    “Law,” like thoughts, feelings, hopes, and dreams, never protected anything.

    We only ever have the “rights” that we’re willing to actively, physically defend.

    The only thing that ever matters is what we do.

  32. TarheelDem says:

    Are you arguing that the Congress that created the War Powers Resolution did not sidestep its implications on the United Nations Participation Act.

    And how does this clause in the War Powers Resolution affect how narrow the judgment between counsels can be?

    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.

    Does the fact that European members of NATO are in contact with the Transitional National Council mean that this clause is determinative in defining “introduction of United States Armed Forces”.

    Did the counsel to the President and State breach ethics in recommending to the President that the action did not rise to the level of hostilities?

    Or is the total issue the fact that the 1973 Congress cannot bind the 2011 Congress in its interpretation of how the War Powers Act applies to a UN Security Council action that the President has decided to implement.

    If it is as open and shut a case as you believe, there are two legal counsels in the executive branch who should summarily lose their jobs. And it will be not problem for the House to draft an article of impeachment.

    • earlofhuntingdon says:

      Your conclusion assumes away the absence of political will that plagues Congress. That’s as much of an issue as the existence of a facial case that Mr. Obama violated the law.

      • TarheelDem says:

        My first questions had to do with whether there was in fact a prima facie case that Obama violated the law.

        My second question is that, if there was, what are the ethical (in terms of licensing) implications for the counsel that enabled the decision (and because Obama himself is an attorney, for him).

        If the first is true and the second is true, the third question goes to the Republican majority in the House, which has the responsibility for impeachment.

        And I understand your response to be the House Republicans really are not serious about accountability but are just scoring cheap political points.

        My opinion is that if funds are cut off and/or the President is brought to task (both unlikely IMO), the NATO operation in Libya could well proceed without US participation. The Sixth Fleet could leave the area of operations. I suspect that that’s what Gates’s stern talk to the European NATO countries during his farewell tour was about. I suspect that in private the conversation was more candid and blunt.

        • Fractal says:

          We should veer away from the “unprofessional conduct” framework on this. Yoo & company may still suffer consequences to their professional licenses, but that was a different case and it’s a diversion & distraction to drag Yoo et al. into this now.

          The NYT did us all a favor: it dropped the bombshell in a completely public way that DOJ OLC & the AG both have allowed leaks announcing that they advised the Preznit he is acting unconstitutionally. That never happened during the entire war crimes/rendition/torture/foreign occupations under Shrub. It just happened yesterday. Things are different today. The Attorney General has denounced the Preznit’s war actions as unconstitutional. It is not optional how the House must respond. It is not optional for the AG to continue to serve if the Preznit repudiates the AG on a core constitutional issue.

          The fact that there are lawyers involved on all sides is completely irrelevant, this is not subject to the jurisdiction of some puny “bar counsel” in some back-water jurisdiction like the District of Columbia or New York state.

          This train wreck has occurred because a Constitutional Officer in the Justice Dept. has contradicted the Constitutional Officer in the White House, and the Congress (and possibly the Judicial Branch) must respond.

          • TarheelDem says:

            There are too many ways of making the argument moot for it to make it to the Supreme Court. But this politicized court is more likely to take a strong construction of the War Powers Resolution now than it would have against a GOP President.

            You are assuming that the New York Times article is accurate. Even with a careful reporter, that might not be the case. Has Holder acknowledged the nature of his advice to the President?

            And no one has answered my question about the impact with respect to the United Nations Participation Act. The Congress in 1973 wanted to be very sure that it did not impede the President’s ability to respond to a UN request if he decided it was in the interest of the US. My understanding is that they just waved a wand over it and went on. That the issue is an open one.

            • Fractal says:

              don’t mean to disrespect your argument, but you could do a little searching to help us answer your questions:

              Has Holder acknowledged the nature of his advice to the President?

              no one has answered my question about the impact with respect to the United Nations Participation Act.

              On your second question, maybe you could give us a link to the UN resolution you are talking about?

              Perhaps an easier way to rephrase your first question is whether Holder has disputed what the NYT reported? The crucial angle NYT scooped was that the Preznit rejected Holder’s advice. Do you see any ambiguity in that?

              Here’s another NYT article today on the related issue of funding for the Libya hostilities, which says exactly the same thing, the Preznit rejected Holder’s advice:

              http://www.nytimes.com/2011/06/20/world/africa/20powers.html?_r=1&ref=politics

            • spanishinquisition says:

              “And no one has answered my question about the impact with respect to the United Nations Participation Act. The Congress in 1973 wanted to be very sure that it did not impede the President’s ability to respond to a UN request if he decided it was in the interest of the US. My understanding is that they just waved a wand over it and went on. That the issue is an open one.”

              http://www.salon.com/news/politics/war_room/2011/03/21/congress_war_powers_the_president

              • TarheelDem says:

                That is primarily a Constitutional argument about the UN Participation Act. What exactly were the conversations in the leadup to the passage of the War Powers Resolution that considered its relationship to the UN Participation Act? That’s the part that’s not clear.

                Because, if the Constitutional argument is correct there are other Presidents who exceeded their Constitutional power and were not checked by Congress.

                Thanks for the link. It gets me partway to my answer.

                The other issue is the actual commitment of US personnel. Exactly how many have been committed and what has their mission been since NATO’s takeover of the operation? There are a lot of assumptions being made on this score. Assumptions that rest on fighting the last war.

                • spanishinquisition says:

                  “That is primarily a Constitutional argument about the UN Participation Act.”

                  It says there’s been no Article 43 agreements – which would take further ratficiation from Congress – hence the UNPA is moot. Whether the UNPA is Constitutional or not, Libya doesn’t meet it per the UNPA.

                  • TarheelDem says:

                    So there has to be an existing Article 43 agreement in place in order for the President to respond to an Article 42 request for forces? Is that the way I should read the UN Participation Act section 6?

                    So the issue is: (1) Is there an Article 43 agreement with the UN and approved by Congress under which the action in Libya would fall? (2) Are the actions that the US has been taking since the expiration of the 60-day period for notification of Congress actions that would require the approval of Congress? (3) Is the NYT correct in its assertions of the division in the opinions of the various counsel and especially of Eric Holder’s opinion?

                    @90 You raise an interesting question, Mary. “Why not just have gone in a timely fashion and asked/received?

                    My guess is they feared it would become another political football in this highly polarized Congress. Of course, now it has anyway.

            • powwow says:

              And no one has answered my question about the impact with respect to the United Nations Participation Act. The Congress in 1973 wanted to be very sure that it did not impede the President’s ability to respond to a UN request if he decided it was in the interest of the US. My understanding is that they just waved a wand over it [what, exactly?] and went on. That issue is an open one.

              The “impact” you’re proclaiming – of the 1973 War Powers Resolution (WPR) on the 1945 United Nations Participation Act (UNPA) – seems wholly illusory. Are you asserting – and, if so, what justifies your assertion – that Congress in 1973 “wanted to be very sure that it did not impede” some unilateral “ability” of the President to respond to a U.N. request for the use of U.S. armed forces, provided the President alone “decided it was in the interest of the US” to so respond by deploying forces? If so, you appear to be seriously misreading both the WPR and the UNPA, as spanishinquisition has already indicated, with cites to the excellent Michael Lind post linked @ 76.

              I’ve linked more than once to this important 1991 AJIL paper by Michael Glennon – including quoting from it in The Constitution, The War Powers Resolution, & Libya: Rand Paul Defends Congressional Authority, Carl Levin Cedes It – but, again, in addition to being a must-read for anyone wondering about the United Nations treaty and how it could remove the Constitutional powers of the House of Representatives to take part in deciding whether or not to take this nation to war, though treaties are only ratified by the Senate, it makes clear that your expressed WPR/UNPA concerns are unfounded [and it should definitively answer your follow-up questions @ 94, provided you recognize that, no, there has not been any Article 43 “special agreement” concluded between the President and the U.N., and thus no such Article 43 special agreement has been presented to Congress for its approval or disapproval, with regard to the President’s attack on Libya]:

              The implementing legislation of the Charter was the United Nations Participation Act (UNPA). The UNPA, its House floor manager said, “prescribes the domestic internal arrangements within our Government for giving effect to our participation in this enterprise and sets up the machinery for complying with certain of the major international commitments which the United States assumed upon ratification of the [United Nations] Charter.” Thus, the Harvard Law Review observed that “[t]he question which governmental department had power to determine for the United States the number of troops to be placed at the disposal of the Security Council was settled by Congress in the United Nations Participation Act …. ”

              The prevailing view in Congress when the UNPA was enacted was that the only mandatory way for the Security Council to raise armed forces was pursuant to special agreements concluded under Article 43. (The Security Council has never concluded such an agreement with any member state.) The President, prior to directing an American vote in the Security Council requiring the use of force by the United States, was expected to seek congressional approval if that approval would otherwise be required. The [United Nations] Charter was seen as conferring no additional authority on the President to use United States armed forces in hostilities; the President could not, by an affirmative vote in the Security Council, confer upon himself power to use armed force that he would not otherwise possess. The text of the UNPA makes that clear, as does a review of its legislative history.

              The [UNPA] text, in section 6, authorizes the President to negotiate special agreements under Article 43. Any such agreement must be approved by Congress “by appropriate act or joint resolution.”The President is not required to seek further congressional authorization to make U.S. armed forces available for use by the Security Council under a special agreement. A proviso to the section denies the President any authority to make forces available to the Council other than the forces made available under the special agreement. (The proviso contains one irrelevant exception: it permits an inference of authority under the succeeding section, but that section applies only to activities “not involving the employment of armed forces contemplated by chapter VII of the United Nations Charter.” Because Article 42 is part of chapter VII, no inference of authority may be drawn with respect to use of armed force by the Security Council under Article 42.)

              [Etc. – See PDF Page 7 of 16 for more.]

              – Professor Michael Glennon, writing in 1991

    • Fractal says:

      And it will be no problem for the House to draft an article of impeachment.

      Whether drafting the Article would be a “problem,” there is certainly no problem for the House Judiciary Committee to convene an investigation. It could be convened tomorrow the minute the House resumes business at noon on Tuesday. http://www.house.gov/ (Click “floor proceedings” tab in right column.) Or it could use Wednesday’s calendar slot which is now free due to postponement of unrelated committee hearings. http://judiciary.house.gov/hearings/calendar.html

      • lysias says:

        Lamar Smith of Texas is Chairman of the House Judiciary Committee. Anybody know how he’s been voting on the Libya resolutions?

      • lysias says:

        That hearing on the Jobs, Growth and Regulatory» Accountability Act on Wednesday that’s now been postponed is of the Subcommittee on Courts, Commercial and Administrative Law of the House Judiciary Committee, not of the full committee.

        By the way, anybody know why that hearing has been postponed?

        • Fractal says:

          I just gave Wednesday’s calendar as a convenient proxy for the ability of the Judiciary Committee to convene any hearing or any meeting or any investigation it wants on any day this week.

  33. Phylter says:

    Trust me when I say that Obama is doing the will of the MIC, as are they all. Were that not the case, he’d already BE impeached. He’s the repugs pinata, or, if you like, a strawman who they can all beat the shit out of to show that they’re on the side of the little people.

    Trust me, they ain’t, not even the democrats. In the words of the sage known as George Carlin, “They don’t give a fuck about you”.

  34. bluedot12 says:

    Frankly, I do not understand why the republicans would not open an impeachment hearing on this, if it is this open and shut. If nothing more they may further weaken Obama. Maybe the truth is they fear a backlash even within their own ranks. If that is the absense of political will you speak of then it is obviously controlling.

    • spanishinquisition says:

      “Frankly, I do not understand why the republicans would not open an impeachment hearing on this, if it is this open and shut.”

      Probably for the same reason why there’s no criminal prosecutions of the Bush admin by the Democrats – they’re bipartisan in how they both want to break the law.

  35. lysias says:

    Whether or not Bush actually said the Constitution “is just a god-damned piece of paper,” Obama is behaving as if he believes it.

  36. RevBev says:

    And genius REid saying O did not need to check with Congress…Where did he go to Law School?

      • Fractal says:

        talking about the lawyers is a total red herring. The Attorney General does not need to be a lawyer, any more than a Justice or the Chief Justice of the Supreme Court. They all have lawyers advising them. The AG’s Office of Legal Counsel (OLC) did the right thing. It is irrelevant what State’s lawyer did or what the White House lawyer did.

        • RevBev says:

          I asked the question about Reid b/c I was curious about whatever knowledge/authority/smarts he may possess to be opining….not about the weight of what he said.

          • Fractal says:

            hi Bev, sorry if I snapped at anybody. I don’t want this amazing event to get sidetracked by side issues of which lawyer is violating which duty to his or her client. Unconstitutional conduct by the Preznit has nothing to do with ethical obligations of attorneys. Indeed, whether the particular legal advice from the AG and the OLC holds water or not, the Speaker of the House has already announced that he rejects the Preznit’s claim that the Libya war actions are not “hostilities.” The Speaker of the House has already adopted a political conclusion that happens to match the legal conclusion of the AG and the OLC.

            Once the Speaker of the House announces the political position of the House, it is incumbent on the House, and its Judiciary Committee, to open an investigation under Article II, Section 4 (impeachment), based on the Preznit’s open defiance of the War Powers Act. Indeed, since the AG is an “Officer of the United States” under Article II, Section II, the AG could have been impeached if he had failed to uphold the War Powers Act.

            Check out Article II of the Constitution:

            http://caselaw.lp.findlaw.com/data/constitution/article02/

            The NYT bombshell makes this a gigantic constitutional train wreck, whether anybody involved was a lawyer is entirely irrelevant at this point.

  37. Synoia says:

    Look forward not backward is a clear impeachment act.

    All crimes are committed in the past, and the President refusing to investigate crimes is, to me, a refusal to uphold the rule of law and a violation of O’s oath of office.

    His oath was not “Fuck the Constitution”.

  38. bluewombat says:

    If we supported Bush’s impeachment for violating the Constitution, shouldn’t we support Obama’s impeachment in the spirit of intellectual consistency?

  39. papau says:

    But,,,BUT….

    He is going to leave Afghanistan real real soon – indeed General P has even offered up 30,000 – the size of the surge – to be out by 12/31/2012 – and the Pentagon has already started – with 812 military types not being replaced when they return to the US in July. And the Pentagon has doubled its offer of 5000 by 12/31/2011 – they now offer 10,000 – maybe – with conditions.

    Hard to not see Obama as a fighter against the control of the US by the military industrial complex – and big oil. /s

    Besides if someone bombed us – but did not invade with boots on the ground – we would not call it war, would we? /s

    • spanishinquisition says:

      “Besides if someone bombed us – but did not invade with boots on the ground – we would not call it war, would we? /s”

      I’ve yet to hear Obama say that 9/11 wasn’t hostile, but that’s what his silly arguments are equating to.

      • bluedot12 says:

        Good point, but as a non lawyer maybe words have a different meaning? But 9/11 was certainly hostile to me as were the bombing of embassies and the Cole.

        • RevBev says:

          Part of that is why I was curious about Harry Reid; I took the implication that this stuff does not meet the hostility test. Blows one’s mind.

    • speakingupnow says:

      Besides if someone bombed us – but did not invade with boots on the ground – we would not call it war, would we? /s

      Your comment also points out the on-going loss of credibility we are having worldwide. Why should other countries find our policies credible when we don’t even follow OUR OWN CONSTITUTION.

  40. bmaz says:

    No Mary, Holder backed up his OLC. So it’s AG, OLC and DOD GC on one side of the issue and WHC and State GC on the other.

    And the State GC went against every tenet he ever previously held in order to render an opinion his boss, Clinton, wanted.

    • cregan says:

      bmaz, I am in complete agreement with you on your original post.

      Worse, is the dunder-headed approach to the entire Libya situation. To be both outside the law and totally dumb in action and result leaves the emperor without a stitch of clothes.

      I mean, if you are going to break the law and rob the bank, at least get away with some money.

  41. workingclass says:

    Five deferments Dick managed to elevate his side kick dummy to the office of Unitary Executive. The time was ripe. Our political (and financial) institutions were sufficiently corrupt to allow a power grab.

    Obama is our second modern president (Unitary Executive). He is owned and operated by the same people who owned his predecessor. What distinguishes modern presidents is that they are above the law and that there is no real transition of power from one to the next.

    So Obama broke the law. Or someone or some class of people who enjoy his protection broke the law. What does that mean if there is no way and nobody to enforce the law? It means Obama IS the law. Now what?

  42. Mary says:

    The most telling thing about all of this is that Obama has clearly and deliberately staked out a path that he did not have to go down and he’s done it solely to assert and grab power.

    The truth is – there’s no way that he wouldn’t have received a Congressional authorization if he had gone in and asked for it in a timely fashion. There’s absolutely no question he would have gotten what he wanted and it would have been his most “bipartisan” of actions in office.

    Instead, he has deliberately chosen to not ask Congress and to do so even when the DOJ is telling him he’s exceeding his authority.

    Why?

    Why not just have gone in a timely fashion and asked/received?

    It tells all there is to tell about the man.

  43. john in sacramento says:

    bmaz:

    Without saying Obama should be impeached, failure to at least have the discussion made in those terms is dereliction of constitutional duty by people, pundits and Congress. This critical issue is not yet getting that kind of play, but it should as it is absolutely why the founders placed the provision in the Constitution to start with.

    Can’t remember exactly where I heard it or read it, but very recently I came across someone who said that impeachment was supposed to be used much more frequently than it has been used

  44. Richard729 says:

    Looks like the Republican position on Libya is becoming accepted orthodox so it’s just a matter of time before public opinion and approval will swing drastically away from Barack Obama. His sin: he hasn’t gotten the permission of John Boehner’s Republicans and their Tea Party spawn.

    The “softening up” propaganda the Republicans have been tossing out for the media and public consumption during the NATO sponsored bombings in Libya have had the expected effect on the mainstream media who are now calling Libya, as well as Iraq and Afghanistan, Obama’s wars.

    Now, Republicans, and some Democrats, are piling on Obama, claiming that he has violated the War Powers Act (as if that slipshod piece of gobbledygook was etched in a stone tablet)and building the cause that there are legitimate grounds for impeachment — just what the doctor ordered for Republican campaign smear ads leading up to the 2012 election.

    Perhaps a little history is in order here. “Operation Provide Relief began in August 1992, when President George H.W. Bush announced that U.S. military transports would support the multinational UN relief effort in Somalia.”

    Though it started out nobly enough as a “peace-keeping” mission and humanitarian act it began deteriorating rapidly. That mission dragged on longer than the current Libyan campaign against the despot Moammar Gadhafi who began carrying out genocide against his own people before either NATO or the U.S. got involved.

    On December 12, 1992, the U.S. [still under the orders from President and commander-in-chief George H.W. Bush] sent 28,000 soldiers into Somalia under the cover of the United Nations Operation in Somalia (UNOSOM) in what they said was a “humanitarian mission” to bring food to starving people.

    So George H.W. Bush sent 28,000 U.S. troops into Somalia consisting of U.S. Marines and U.S. Army. The entire mess was inherited by incoming president Bill Clinton who pulled all troops out of Mogadishu after 18 soldiers were killed when their Blackhawk helicopter was shot down and several U.S. soldiers were dragged through the streets.

    So far, no U.S. troops are in Libya. Though the initial humanitarian reasons are being questioned today the war is a huge political liability for Barack Obama. But, no matter to the Republican wailers.

    Nobody seriously expected an iota of support for Obama from Republicans from Day One when John Boehner made it clear on Meet The Press only days after Obama took the oath of office that he and his colleagues’ strategy was to say No to everything. They’ve been saying No ever since.

    It’s clear that one man’s effort to bring humanitarian aid to a warring and starving country was a much more noble cause when a Republican launched the military action. It’s also clear that once it got out of hand and American losses were unacceptable, a Democrat, Bill Clinton, was vilified for the ultimate withdrawal of our troops from Somalia.

    One president, George H.W. Bush, made the decision to use lethal force in what was hyped as a humanitarian effort, not a declared war even though U.S. troops were put on the ground in harm’s way and dozens died.

    Another president, Barack Obama, faced the same kind of humanitarian decision yet because the objectives were not achieved in 60 days the response he’s getting from Republicans is their prioritized goal to see him meet his Waterloo and blame him for three wars, two of which were started by a Republican president and supported by a Republican U.S. Congress.

  45. lysias says:

    Why is it always assumed that the client to whom a government lawyer owes zealous representation is his political superior, as opposed to the American people?

  46. ondelette says:

    He didn’t “unilaterally” blow them off if Koh was in his camp. And pre-calling anyone who disagrees with you an Obama sycophant or partisan hack just about stifles any disagreement wouldn’t you say? Please do point out that one of the arguments advanced by the Koh camp is the definition of ‘hostilities’ and another is that the WPR specifically exempts the use of the U.S. military in any supply role. After that you can go rant all you like, but your arguments about being illegal from day one fall to some discussion and aren’t as crystal clear as you would like them to be — hence the fact that the administration’s top general counsels were not, in fact, unanimous.

    Just sayin’.

  47. Nathan Aschbacher says:

    The point here is that failure to at least have that discussion, and take a sober look at the facts at issue, and ourselves in the mirror, is to fail the Constitutional form of representative democracy we profess to love. It is to fail our basic duties as participatory citizens; it is to fail the nation.

    Congress already had this discussion and concluded that they’ve rightly abdicated this authority to the Executive, save for some minority dissent.

  48. john in sacramento says:

    Hah! I’d like to know their definition of “hostilities”

    I like how Kucinich described it in response to a clip of spokesmodel and designated obfuscator Jay Carney dissembling lying through his teeth that there are no forces to withdraw

    DK

    I thought it was interesting that he said that we have “no forces to withdraw.” Those were his exact words. Yet, The Guardian U.K., if you go to their website and you look at their data that they’ve assembled, pursuant to their study of all the different nations that have played a role in this attack on Libya, the United States has 8,507 personnel of 12,909 involved in the Libyan mission; 153 of 309 aircraft; sorties that have been flown, which include parts of bombing raids, 2,000 of [5,857] raids; 228 of 246 cruise missiles fired by the U.S. Now, these were figures that were as of May 5th. To say that we don’t—as Mr. Carney said, that we don’t have any forces to withdraw is mystifying. I hope he wasn’t being disingenuous. I hope that he understands that we are, according to the administration’s own reports, on target to spend over a billion dollars in this war against Libya.

    http://www.democracynow.org/seo/2011/6/16/is_us_attack_on_libya_legal

  49. Masoninblue says:

    I believe Obama decided to break the law and provoke a constitutional crisis because he is already conducting God-knows-how-many drone bombings and after-midnight JSOC assassinations in God-knows-how-many foreign countries. He intends to conduct and has been conducting these CIA/military operations in absolute secrecy probably without requesting consent from the relevant government. He does not intend to ask permission from Congress before these war-crime operations. Scribe @2 and Fractal @78 made the same point.

    Don’t forget that Kucinich and other members of Congress, including more Republicans than Democrats have sued Obama in federal court to stop him. Therefore, the judiciary is now involved. Regardless of the decision issued by the United States District Court, I believe the loser will appeal and the case eventually will be decided by the Supreme Court.

    I also agree with my distinguished brother, the learned Bmaz, who has basically characterized Obama’s legal argument as absurd on its face. Because his argument is so patently ridiculous, I do not assume that the Supreme Court will green-light Obama’s unconstitutional and unlawful power grab.

    The intriguing question for me, which I mentioned in David Dayen’s post yesterday, is what happens if the Supreme Court decides against Obama?

    Does he say, “Gee, sorry ’bout dat?” Or does he say, “Screw you, I am the President.”

    I believe he decided how he would answer that question before he decided not to seek approval from Congress.

    If I were serving in Congress, I would immediately do everything in my power to commence impeachment proceedings against the disgraceful and dangerous imbecile who willfully and maliciously lied himself into the presidency.

    Please return to your seats and buckle your seatbelts. We could be in for a rough ride as Obama seeks to broaden his powers and distract attention from the jobless flatlining economy.

    • powwow says:

      Don’t forget that Kucinich and other members of Congress, including more Republicans than Democrats have sued Obama in federal court to stop him. Therefore, the judiciary is now involved.

      According to their attorney, Jonathan Turley, Federal District Judge Reggie Walton, to be precise, now has this issue before him. This is the complaint that Turley filed on behalf of the legislators last Wednesday (6/15).

      This case would be a slam dunk for the legislators, in my opinion, as to the proper interpretation of the WPR and the division of war powers by the Constitution, except for the fact that the federal judiciary has been trying, for decades now, to weasel its way out of its responsibility “to say what the law is” on one of the most important and consequential (and abused) Constitutional powers (too “political” a question to be ruled upon, the politicized judiciary complains about the war powers/WPR dispute, as it scurries to find an excuse to duck its duty by throwing the case out of court for “lack of standing”). But if there’s one D.C. District judge who has the ability, fortitude, and integrity not to duck the tough job of being an independent judge worthy of the name, in this high-stakes case, Reggie Walton may well be that one judge. For all our sakes, I sincerely hope that Judge Walton will finally begin to re-assert the Constitutional role of our Judicial Branch of government as a meaningful power-balancer even (or especially) where, as here, the controversy is generated by the post-WW II Executive’s ongoing usurpation of the Constitutionally-vested war powers of Congress.

      [Understood, bmaz @ 107. I was speaking for myself without implying more, and figured your relative priorities, of a similar nature, were already clear, given the laudable care you took not to mince words in this heartfelt post.]

      • harpie says:

        War Powers Experts Say Lawsuit Filed Against the Obama Administration is Right on the Merits [pdf]; The Constitution Project; 6/15/11

        WASHINGTON- Today, former Members of Congress and Co-Chairs of The Constitution Project (TCP) War

        Powers Committee David Skaggs (D-CO) and Mickey Edwards (R-OK), as well as TCP War Powers Committee member and renowned war powers scholar Louis Fisher, released a statement in response to the news that a bipartisan group of lawmakers had filed a lawsuit against the Obama administration for violating the War Powers Resolution by undertaking military action in Libya without congressional approval.

        Their statement follows:

        “The complaint filed against the president today by several members of the House is exactly right on the merits. The ongoing U. S. military action in Libya is unconstitutional as a violation of the authority granted to Congress in Article I section 8 to decide when this country can initiate the use of force abroad. The lawsuit is also correct in claiming the President has violated the War Powers Resolution –the statute that requires a President who has already acted unilaterally to get approval from Congress for a military action to last longer than 60 days. The complaint is also right to point out that neither the U. N. nor NATO can provide a substitute for congressional authorization for war. Unfortunately, the lawsuit will almost certainly be dismissed on procedural grounds. In the past, courts have decided that they will not hear claims like this from aggrieved Members of Congress.”

        In its 2005 report entitled Deciding to Use Force Abroad: War Powers in a System of Checks and Balances [pdf], The Constitution Project’s War Powers Committee recommended improvements to war powers decision-making designed to restore the proper roles of all three branches of government.

        Recommendation #9 of that report:

        9. To preserve the system of checks and balances of which war powers are part, the federal courts should, in appropriate cases, decide whether authority exists for the use of force abroad.

        The federal courts have historically, if infrequently, decided the authority for uses of force abroad, as well as the domestic legal effects of war and authorizations for use of force. If courts, on vaguely reasoned claims of non-justiciability, avoid deciding such issues in cases properly before them, they remove a vital check from the constitutional system of war powers. Whether a use of force is constitutionally authorized is not a political question beyond the judicial power. When plaintiffs have standing, the courts should not erect insuperable prudential obstacles to deciding this question incidentally to private rights disputes, or to deciding it directly in the rare case in which there is no reasonable expectation that further action by the political branches will avoid the question.

          • harpie says:

            That seems to be the question. I thought that’s what the committe meant when they said:

            Unfortunately, the lawsuit will almost certainly be dismissed on procedural grounds. In the past, courts have decided that they will not hear claims like this from aggrieved Members of Congress.

            …but I’m not exactly sure what “standing” means…

          • DWBartoo says:

            Ah yes, the “issue” of “standing” which ranks right up there, along with “money” as continuing moral “dilemmas” for the American legal system (and them what “practice” the law … presumably, if not making “perfect”, then seeking to “achieve” as close to reasonable, humane, and just as is “possible” …?).

            What if the court simply throws up its Judicial hands and declares that the court is not the proper venue for solving THIS dilemma, that Congress and Congress, alone, must take up and address this matter?

            Does the court feel that the usurpation of Congressional authority by the Executive is any of the court’s concern?

            Would the court have ANY reason to be concerned about inapproprite or even un-Constitutional behavior, by the Executive, directed at or toward the Congressional “branch” or even at itself?

            Does the court even permit itself to observe what is occurring beyond the courtroom doors, when it seems remarkably sanguine regarding what has actually occurred, in terms of government “deceit” on more than one occassion within recent memory within those federal courtrooms?

            Since, Bush v. Gore, do the Federal Courts, or even SCOTUS, itself, in most of their behaviors evidence any fundamental appreciation of what is necessary, on their part, to ensure an actual rule of law and uphold the Constitution?

            Of course, the same question should be asked of Congress, if we ever get around to talking about what has really happened these last eleven years and many months.

            The “conversation” which all people of conscience know must occurr BEFORE America can actually “move” forward, however much she or her masters claim to be “looking” in that specific direction already…

            How much more filthy money and selfish personl “interest”, how many sacred cows and non-hostility hostilities, shall we have to wade through before such a conversation may be joined?

            It may be the Obama’s needless and unneccessary “overreach” will be the proverbial “straw”, but the deep complicity of both Congress and the Judiciary argue against any deep soul-searching and actual accountability.

            Obama’s “overreach” extends to distorting reality to the utmost degree, and, ultimately, it is an injurious offense against and a major defiance of … reason.

            How much further down the rabbit-hole must we all be dragged before we have the collective courage to say “Enough!!!”?

            If there are any fundamental human resposibilities, then is that not one of the most important, at least in “our” time?

            DW

  50. lysias says:

    When I was an officer in the U.S. Navy, the oath I swore was to the Constitution, not to the President. If a president had defied a judgment of the Supreme Court, I would have disobeyed any orders of his in defiance of that judgment.

    Officers in the U.S. military still swear that same oath today.

  51. harpie says:

    Deciding to Use Force Abroad: War Powers in a System of Checks and Balances [pdf]; The War Powers Committee of The Constitution Project; 2005

    4. The Role of International Organizations and International

    Law in War Powers begins on page 21.

    [p21] International Authorization As a Substitute? – The Supremacy Clause of the Constitution asserts that “all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land….”60 The United Nations Charter is a treaty to which the United States is a party. Although no administration since the Truman administration has formally relied on treaty authority to use force abroad without advance congressional authorization,61 some defenders of uses of force have asserted that an authorization from the United Nations Security Council is a constitutional substitute for congressional authorization because the President has the constitutional authority to execute a treaty obligation as part of the law of the land.62 Others have even implied that authorization by regional collective defense organizations such as the North Atlantic Treaty Organization can operate with like effect.

    These claims are wrong. United Nations Security Council or NATO approval of the use of force by the United States is not a constitutional substitute for congressional approval. That a use of force is lawful under international law does not make it constitutional. […]

    From the Introduction:

    […] The Constitution Project formed a bipartisan, blue-ribbon committee of experts in order to address these complex issues, provide guidance to policymakers, and educate the media, students, and the general public about how the United States can constitutionally and prudently decide to use armed force abroad. It is our hope that the consensus recommendations in this report will serve as a useful guide to Congress and the President when our country is next considering military action. Led by two former Members of Congress, Mickey Edwards and David Skaggs, the committee joined war powers scholars with public policy experts who have senior experience in all three branches of government.

    Not every committee member who endorsed this report necessarily agrees with the phrasing of every statement in it. However, except where specifically noted, they all agree on the principles and general conclusions of the report.

    Among the list of committee members:

    Harold Hongju Koh

    Dean and Gerard C. and Bernice Latrobe Smith Professor of International Law, Yale Law

    School; author of The National Security Constitution: Sharing Power after the Iran-Contra

    Affair; former Assistant Secretary of State for Democracy, Human Rights, and Labor

  52. harpie says:

    Obama Unilateral Action and Disregard for Legal Counsel Opinion on Libya Draws Condemnation [pdf]; The Constitution Project, War Powers Committee Co-Chairs; 6/20/11

    […] “We deeply regret that the President has ignored the more considered advice of the Office of Legal Counsel and the General Counsel of the Department of Defense as to the applicability of time limits under the War Powers Resolution (WPR) for “hostilities” begun by the President without congressional authorization. For that matter, we believe the President had no constitutional authority to initiate this use of force abroad without congressional authorization to start with. That violation is aggravated by his decision – based on sophistry and semantics – to violate the WPR’s statutory requirements. National security policy in such an important matter should not turn on such a tortured definitional exercise as was required to conclude that what we are doing in Libya does not constitute “hostilities.” It is also a shame that Congress lacks the will or the votes to say either “no” or “yes” to this military action. From all we can learn, leaders do not have the stomach either to cut off funds (lacking the 2/3 needed to override a certain veto) or actually to authorize what we’re doing, however belatedly.” […]

  53. harpie says:

    This is from a conservative news site which interviewed Louis Fisher [video link in article for the following quote] [I can’t listen to it now and hope they transcribed it correctly.]:

    <i>‘Nothing More Impeachable’ Than War Without Authorization, Says Constitutional Scholar; CNSNews; 6/15/11

    “I am not going to recommend that the House Judiciary Committee hold impeachment hearings, but I would like members of Congress and the public to say that nothing would be more impeachable than a President who takes the country to war without coming to Congress, who does it unilaterally. So, I would like people to be educated, including members of Congress, to be educated that that is a very grave offense.”

    Here’s the whole 33 minute interview.

  54. WilliamOckham says:

    [Putting on my flame retardant underpants.]

    I strongly disagree with the post and most of the comments here. Bmaz is, of course, correct on the technical legal argument that he makes. In theory, the War Powers Act is still good law. In reality, it was a dead letter law the minute it was passed. Presidents have been ignoring it from Day One and Congress after Congress have failed to enforce it. Every President since Nixon (except my hero, Jimmy Carter) has knowingly, and with malice aforethought, violated it. It would be stupid to start talking about impeaching Obama for doing what almost every modern President has done.

    I am pretty sure that Bmaz will say, among other things, that I am treating the U.S. Constitution as a technicality. To that charge, I plead guilty. When it comes to the power of Congress to declare war, it is nothing more than a technicality. That ship, sadly, sailed long ago. If Congress wanted to assert its proper role, it would. Unfortunately, our entire political system has accepted the modern Imperial Presidency and the National Security State. We continue to slouch drunkenly towards the modern equivalent of the old Roman Republic’s dictatorial system, wherein the elites choose a man to be a tyrant for a limited term of office. Obama is doing nothing to reverse this trend, but he is no innovater in the mode of Dick Cheney.

    [Posted from Rome amidst the ruins of another empire pretending to be a republic.]

    • bmaz says:

      I understand the sentiment, but do not agree. First off, simply because others have not been prosecuted on a statute does not mean a statute is invalid or unenforceable, nor that it should not be enforced. This argument is heard rather routinely in the law, and the determination is consistently that the law is, well, the law. Secondly, I am not so sure it is correct to say “ignoring” the law from day one. It is a fact they have played a little loose on it with arguably non-conforming resolutions as opposed to proper authorizations, but never before in the manner that Obama has here. This is different. And the precedent it can, and will, set would lay the foundation for the unbridled use of remote drone warfare by Presidents in the future. It is a discussion that we should have.

        • klynn says:

          The reason I ask my question is based on Authorization for Use of Military Force Against Iraq Resolution of 2002 which was enacted on October 16th 2002.

          The resolution had general language not specific to Iraq about:

          1)The efforts by the Congress and the President to fight terrorists, and those who aided or harbored them.

          2)The authorization by the Constitution and the Congress for the President to fight anti-United States terrorism.

          So I am assuming, this is what O will pull from for his defense of his actions?

      • WilliamOckham says:

        But this is not about an individual and the law. The War Powers Act was always about institutional power. It was passed solely to make a point. I realize that as a lawyer you have real commitment to “The Law”. I admire that. But I come from a school for bare knuckle politics (seriously, I went to the Lyndon B. Johnson School for Public Affairs). Since 9/11, our legislature has completely abrogated its responsibility to serve as a check on the exacutive branch. If you want to place blame for this one, you really ought to be looking at towards the Hill.

        • klynn says:

          I see your point.

          Didn’t Doe v Bush address this question?

          In early 2003, the Iraq Resolution was challenged in court to stop the invasion from happening. The plaintiffs argued that the President does not have the authority to declare war. The final decision came from a three-judge panel from the US Court of Appeals for the First Circuit which dismissed the case. Judge Lynch wrote in the opinion that the Judiciary cannot intervene unless there is a fully developed conflict between the President and Congress or if Congress gave the President “absolute discretion” to declare war.

          (snip)

          Judge Lynch:

          An extreme case might arise, for example, if Congress gave absolute discretion to the President to start a war at his or her will… Plaintiffs’ objection to the October Resolution does not, of course, involve any such claim. Nor does it involve a situation where the President acts without any apparent congressional authorization, or against congressional opposition… To the contrary, Congress has been deeply involved in significant debate, activity, and authorization connected to our relations with Iraq for over a decade, under three different presidents of both major political parties, and during periods when each party has controlled Congress.

          I am assuming that the lawsuit is the beginning of congressional opposition? But that should have started with amendments in Congress overturning decades of Iraq policy. I want to see Boehner stand by his signature on this lawsuit and begin some leadership in overturning decades of of significant debate and admit the Iraq war was illegal.

          Guess it is time to look at the repug signatures on the lawsuit to see how many voted for Iraq Resolution of 2002? How many of the Dem signatures on the lawsuit were yes vs no votes for Iraq Res (for those who were around in 2002)?

          So, this lawsuit sits on a big pile of irony for Boehner?

          • lysias says:

            If the anthrax letters were a (successful) attempt to stampede Congress into passing the PATRIOT Act, the members of Congress have not exactly been free agents.

            • klynn says:

              Point taken.

              I still agree with WilliamOckham. If they were able to come together to file the lawsuit against O then they were capable to take other actions. Note the language of Judge Lynch because I am sure O’s lawyer did:

              To the contrary, Congress has been deeply involved in significant debate, activity, and authorization connected to our relations with Iraq for over a decade, under three different presidents of both major political parties, and during periods when each party has controlled Congress.

              (my bold)

              Still want to see Boehner’s face as he is asked to take Congressional leadership on this. He should be asked to do that.

        • bmaz says:

          Well, I dunno about that. A WPR situation is initiated by a President injecting American military into hostilities without Congressional authorization. Such action becomes presumptively illegal 60 days later should the Executive not seek AND the Congress give authorization. Here, Obama never sought authorization, he belligerently stated he did not need it. That is squarely on Obama.

  55. DWBartoo says:

    Superb post, bmaz.

    Basically, the die was long ago (relatively) cast.

    The dilemma now, is that the Executive is, for all meaningful intents and purposes, but one person … the President.

    The other “branches, the Congressional and the Judicial, are composed (or decomposed, if you prefer) of many (relatively) people without a clear and collective perspective.

    Neither “group” will effectively agree upon ANY serious or meaningful push-back, looking forward, and the fatal “drift” will continue.

    Were this not the case, the public and law schools in particular would be raising questions and even some heck about what is going on, but when Obama’s priciple legal hiring has been at the level of “influence”, whether “apologetic” or not, that has obtained, we may well assume that the “best” law schools (and their legal “philosopies” are more than happy to go along with unchecked political and military power and the huge financial benefits which unchallenged power may, inevitably, “generate”.

    Part of the “problem”, a large part, is resident in the legal profession itself, indeed, one imagines that most who belong to that profession are not much concerned with what is going on, now, partially because the American legal profession, as a whole, seems to lack the basic imagination and integrity to either notice that things are amiss, or even, apparently, to give a damn. It is true we are all “responsible”, but the legal profession has a special and undeniable responsibility, not just to live well and gain influence, but to care about the law and especially the rule of law, which is precisely what “this” and too many other “things”, of late, have been specifically “about” …

    This crisis, and it is perhaps the most serious and grave crisis which this nation has ever faced, requires that both the Congressional and the Judicial “branches” join together and re-establish their rightful Constitutional roles, yet they will NOT do this as they are both happy with the little power and great benefits they now enjoy.

    Things will have to become far worse before much of anything is really noticed, let alone “responded” to …

    Fortunately (or not) things will become worse, much worse …

    And then, we shall see.

    DW

  56. harpie says:

    Very informative:

    Declarations of War and Authorizations for the Use of Military Force: Historical Background and Legal Implications [pdf]; Jennifer K. Elsea, Richard F. Grimmett; March 17, 2011

    […] [p1] This report examines a number of topics related to declarations of war and authorizations for the use of military force by the United States. It (1) provides historical background on each of the declarations of war and on several major authorizations for the use of force that have been enacted; (2) analyzes the implications of declarations of war and authorizations for the use of force under both international law and domestic law; (3) lists and summarizes the more than 250 standby statutory authorities that can come into effect pursuant to a declaration of war, the existence of a state of war, and/or a declaration of national emergency; (4) describes the procedures in Congress governing the consideration of declarations of war and authorizations for the use of force, including the procedures under the War Powers Resolution; and (5) sets forth in two appendices the texts of all of the declarations of war and the major authorizations for the use of force that have been enacted. The report does not address the issue of the constitutionality of Presidential uses of military force absent a declaration of war or authorization for the use of force. The report will be updated as circumstances warrant. […]

    [I wonder if the current circumstances warrant an update.]

    The discussion of conflicts after the War Powers Resolution became law begins with Lebanon 1983 on page 10.

  57. klynn says:

    If there was an intel link made to Iraq Al qaeda in Libya, wouldn’t content in the Iraq resolution apply? For example:

    The resolution “supported” and “encouraged” diplomatic efforts by President George W. Bush to “strictly enforce through the U.N. Security Council all relevant Security Council resolutions regarding Iraq” and “obtain prompt and decisive action by the Security Council to ensure that Iraq abandons its strategy of delay, evasion, and noncompliance and promptly and strictly complies with all relevant Security Council resolutions regarding Iraq.”

    The resolution authorized President Bush to use the Armed Forces of the United States “as he determines to be necessary and appropriate” in order to “defend the national security of the United States against the continuing threat posed by Iraq; and enforce all relevant United Nations Security Council Resolutions regarding Iraq.”

    Doesn’t he just need one little shred of intel linking Iraq Al qaeda to Libya and he is “safe” on this issue?

    Please understand, I do not think the President acted properly. I just think this is the route he’ll take to defend his decision.

    Why not amend the Authorization for Use of Military Force Against Iraq Resolution of 2002?

  58. ondelette says:

    They did this 10 years ago with the Bonn Agreement. NATO committed to enforce the Bonn Agreement via ISAF, complete with a Security Council Resolution authorizing the use of force under Chapter VII. Bush never submitted it to Congress for approval at all.

  59. harpie says:

    Kerry announces new Libya resolution; Josh Rogin; FP; 6/21/11

    Article includes full text of the resolution.

    Senate Foreign Relations Committee Chairman John Kerry (D-MA) took to the Senate floor Tuesday morning to announce a new bipartisan resolution endorsing the Obama administration’s military intervention in Libya. […]

    • powwow says:

      Thank you very much for that link and for the many other links, harpie.

      There’s more to the story of that new “bipartisan” Kerry resolution than meets the eye.

      [A binding resolution, this time, endorsing Obama’s Libyan war, offered in the form of a Joint Resolution. A Joint Resolution worded as subserviently as possible without actually voiding its intended purpose: To uncritically rubberstamp unlawful presidential action (Foreign Relations Committee Chairman Kerry’s got his long-sought Secretary of State nomination in mind, remember – and now shares infamous ownership with Obama of the preposterous “non-hostile” hostilities scheming dodge). So this new Kerry/McCain resolution may be considered by the House, unlike the earlier, non-binding Kerry/McCain/Levin “Sense of the Senate” supportive (rather than “authorizing”) resolution (S. Res. 194 – which, though once scheduled for a later-postponed Foreign Relations Committee business meeting, has, like the latest resolution, to date received no committee consideration, and now appears to have been replaced by the binding resolution).]

      I’ve been waiting for something like this new Kerry/Obama production to drop since noticing that Harry Reid took care to “recess” rather than to “adjourn” the Senate as usual both last Thursday (there was no Friday session), and yesterday, Monday. [The House, meanwhile, “adjourned” as usual.]

      The effect of those Senate “recesses” was to continue the “legislative day” of Thursday, June 16th through today, Tuesday, June 21st. So that Kerry’s belated binding Libya resolution will technically show up on the books as being offered in advance of the expiration of the (unrequested/uncertified) 30 extra days subsequent to the 60-day clock of the War Powers Resolution, which expired on May 20th. Between last Thursday and today, the full 90 days expired (removing the last fig leaf of cover under the War Powers Resolution), on Sunday, June 19, according to Speaker Boehner’s count, without Congressional authorization for the President’s attacks on Libya.

      As evidence that the Party leadership in the Senate knew this “bipartisan” resolution was afoot, and was planning for it (no doubt in close consultation with Obama, behind closed doors), see these otherwise-inexplicable remarks by Majority Whip Dick Durbin (an Obama lapdog who does what he’s told), delivered on the floor late last Thursday, after Harry Reid had already publicly announced in the Senate that “There will be no more rollcall votes this week,” and shortly before the Senate adjourned until Monday, with no planned rollcall votes until Tuesday:

      Mr. DURBIN. […] More than 60 days after the initiation of our involvement in Libya, the debate is still on in the Senate as to whether we need to authorize the President to continue our efforts in Libya and whether that authorization should be under the War Powers Resolution.

      I think it should. That is why I have come to the floor today. I joined with Senator Ben Cardin in introducing a proposal, a Senate joint resolution, which we have circulated, which would give the President the authority, if passed, to continue the hostilities in Libya under the War Powers Resolution, expressly stating that it would not involve land forces, ground troops, and that it would have a time certain to end–in our case, by the end of this calendar year–subject to another decision by Congress as to whether it should go forward.

      I believe that is still the right course of action. I am hopeful that before the end of the day there will be action taken by some of my colleagues here in Congress to come forward with a bipartisan resolution which parallels what I just described.

      […]

      Having said that, I believe we should pursue the course that Senator Cardin and I suggested in our resolution, that we should, in fact, deal with this matter under the War Powers Resolution. We should debate and take action on it here in the Senate.

      I am hopeful that soon–perhaps before the end of the day–there will be some effort under way in a bipartisan fashion to do just that.

      […]

      I hope before the end of the day this bipartisan resolution will come to the floor–and certainly before the end of the week–and that we debate it and act on it before the end of this work period.

      – Senator Dick Durbin, Thursday, 6/16/2011

      Note that by the time Durbin was speaking – after 3:00 p.m. and before 5:30 p.m. on Thursday, 6/16 – many, or most, Senators had already started heading home for their long weekend, having been informed by the Majority Leader shortly before 3:00 p.m. that no further votes would be held in the Senate that week.

      • powwow says:

        I just noticed a force-of-habit error in a paragraph of 141, in which, per the strike-out below, I should have written:

        As evidence that the Party leadership in the Senate knew this “bipartisan” resolution was afoot, and was planning for it (no doubt in close consultation with Obama, behind closed doors), see these otherwise-inexplicable remarks by Majority Whip Dick Durbin (an Obama lapdog who does what he’s told), delivered on the floor late last Thursday, after Harry Reid had already publicly announced in the Senate that “There will be no more rollcall votes this week,” and shortly before the Senate adjourned recessed until Monday, with no planned rollcall votes until Tuesday:

        Note that C-SPAN2 is advertising some sort of announcement/news conference by McCain and Kerry, to be held at 8:00 p.m. this evening, about their new Joint Resolution blessing the President’s unlawful acts of war. Your guess is as good as mine, lysias @ 142, about the potential fate of the Kerry/McCain resolution in the House, never mind the Senate (where, it seems clear, Harry Reid, Dick Durbin, and Barack Obama will be pulling out all the stops – if mostly out of public view – to get the resolution passed, ASAP, by their Party-saluting, obediently-unthinking, childish charges).

        It is all “absolutely incredible,” on many levels.

        • powwow says:

          Note that C-SPAN2 is advertising some sort of announcement/news conference by McCain and Kerry, to be held at 8:00 p.m. this evening, about their new Joint Resolution blessing the President’s unlawful acts of war.

          Now that the Senate has “adjourned” for the night (yes, adjourned, this time – evidently Harry Reid’s “recessing” gambit is no longer needed, as surmised), C-SPAN2 clarified their banner. They’re apparently only planning to rerun the remarks that McCain and Kerry delivered on the Senate floor about their resolution earlier today. McCain’s rerun speech of ten minutes in length will lead off, followed by Kerry’s.

      • bmaz says:

        Yeah, I read the damn WPR and that last 30 days of invisible fig leaf just isn’t available to Obama. Clock struck midnight on the 60th day. It is really pretty strikingly clear.

        • DWBartoo says:

          Will Congress, led by the Senate, do their damnedest to fashion Obama a retroactive fig leaf?

          One that offends the modesty of no one?

          And reflects the rainbow hued conviction of moral certitude claimed by the tri-branchate American government these last “endless” years?

          Without the merest smidgeon of a doubt, the serious, and gravitas-laden wisdoms on the Congressional branch along with those stellar and unimpeachable wisdoms bouncing happily along on the Judicial branch, together will realize that a “Constitutional Crisis” is absolutely the last thing the subsidiary branches need at the moment.

          If the courts, in particular, should, somehow or other, notice this nekkid behavior for what it is, then, will they not be impelled to consider other, earlier “things”, as being, in effect, a trail of evidence leading to this last, overzealous exuberance?

          Talk about a can of worms; one that has been rather studiously ignored by the courts, though also clearly a can which has been continuously tended in most complicitous fashion by Congress.

          As the worms turn, not one of the three Branches is going to seem very noble or even basically honest, looking backward.

          Perhaps, if the full breadth and length of any “inquiry” can be limited to the latest worm, and only the latest worm, in all its lonely, if haughty, splendor, then possibly a lot of other worms can go unnoticed?

          Of course, there are them what like to go fishin’ … and some have the darnedest luck.

          DW

  60. harpie says:

    On Libya, President Obama evaded rules on legal disputes, scholars say; Michael Isikoff; MSNBC; 6/21 11

    […] Ex-Obama adviser calls reports ‘disturbing’

    “The recent reports are disturbing,” said [Dawn] Johnsen, an Indiana University law professor who served as a key member of Obama’s Justice Department transition team and was later nominated (but not confirmed) to head OLC.

    Johnsen emphasized in an email that “we don’t have all the details yet,” but added: “It is critical that the traditional central role of the Justice Department and its Office of Legal Counsel be respected, which includes OLC — not the White House counsel’s office — formulating legal advice based on input from all affected agencies.” […]

  61. harpie says:

    Scores of U.S. Strikes in Libya Followed Handoff to NATO; CHARLIE SAVAGE and THOM SHANKER; NYT; 6/20/11

    Since the United States handed control of the air war in Libya to NATO in early April, American warplanes have struck at Libyan air defenses about 60 times, and remotely operated drones have fired missiles at Libyan forces about 30 times, according to military officials. […]

  62. lysias says:

    Is there any chance at all that the House will pass Kerry’s resolution?

    I assume, even in the Senate, it can be filibustered.

  63. Mary says:

    It would have been kicked around some, but he’d have gotten that resolution pretty fast and easy. No way were Graham, McCain, Leiberman, et al going to not let him get it and Republicans would have also known that the more they fought on on issue like that the stronger Obama would be after the vote that gave him what he wanted, with Republicans in line.

    Now, it’s going to be an issue where Congress is going to have to decide something on a resolution (Kerry has already started his post-Raymond Davis round of bailing Obama’s butt out of hot water by getting that going) and now the hearaings are going to be all about Obama rejecting his on AG and OLC – stupid stupid stupid.

    • lysias says:

      Not just the AG and OLC, but even the GC of DOD (and it would be interesting to know if Gates weighed in on the side of his GC — perhaps he could be made a witness at a hearing). Absolutely incredible.

  64. prostratedragon says:

    Maybe we all need to take breaks soon. I know I’m developing one of those “slowly I turn” responses to any mention or sight of a certain word that suggests one might, say, attend two celebrations in one evening, and that’s having already practically eliminated “news” tv, and getting close to it on radio.

    And over at Mark Thoma’s blog, he seems to be going for the record in closing the shrill-to-bitter gap, having really hit the leading edge only a few months ago, it seemed. There was even an f- or s- or something word sighting recently at Brad DeLong’s!

    Everyone can’t leave the store unminded at once, but I have a feeling we’re going to be tested like never before over the next year, so try to get freshened up.

  65. klynn says:

    Okay, IANAL, however this discussion did happen back on April 17, 2002 in a hearing before the subcommittee on the Constitution, Federalism and Property Rights of the Committee On the Judiciary, United States Senate. The hearing was titled: Applying The War Powers Resolution To The War On Terrorism.

    I recommend reading John Yoo’s response at this hearing (beginning on page 10 of the document.) And by the way, I do not type those words, “…recommend reading John Yoo’s response,” with delight.

    This hearing holds many arguments that favor the President despite the many arguments for the role of the War Powers Resolution. Go to the end and read Strom Thrumand’s statement too (page 96-107).

    Every Republican who gave testimony at this hearing laid the Constitutional arguments out for Bush’s extended use of forces globally and now are being used by Obama.

    As I typed earlier, it was no mistake that there was a push on information linking Al qaeda to Libya.

    Again, IANAL.

    • klynn says:

      Russ Feingold was chair of this subcommittee, presided over the hearing and gave the opening statement which is also worth a read.

  66. klynn says:

    My last comment on this, I promise.

    FAS has this CRS Report To Congress on its’ website titled: RL32267 — The War Powers Resolution: After Thirty Years. It is written by Richard F. Grimmett. The full report actually addresses the historic struggle of institutional power irt the War Powers Resolution. The whole report is worth reading. (WO- you would appreciate it!)

    Half way through the report there is discussion about terrorist attacks and use of force in Iraq. There is interesting discussion of S.J. Res 23, S.J. Res 45, H.J. Res 114, the amended version (H. Report 107-721), H. Res 474 and H.J. Res 144. One may conclude that the joint resolutions have given the executive a great deal of power.

    The report closes with a list of 9 proposed amendments that would aid ending the controversies surrounding the War Powers Resolution. ( I wink at WilliamOckham.)

    After 30 years of experience with it in practice, controversy continues over the War Powers Resolution’s effectiveness and appropriateness as a system for maintaining a congressional role in the use of armed forces in conflict. One view is that the War Powers Resolution is basically sound and does not need amendment. (85) Those who hold this opinion believe it has brought about better communication between the two branches in times of crisis, and has given Congress a vehicle by which it can act when a majority of Members wish to do so. The Resolution served as a restraint on the use of armed forces by the President in some cases because of awareness that certain actions might invoke its provisions. For example, the threat of invoking the War Powers Resolution may have been helpful in getting U.S. forces out of Grenada, in keeping the number of military advisers in El Salvador limited to 55, and in prodding Congress to take a stand on authorizing the war against Iraq.

    A contrary view is that the War Powers Resolution is an inappropriate instrument that restricts the President’s effectiveness in foreign policy and should be repealed. (86) Those with this perspective believe that the basic premise of the War Powers Resolution is wrong because in it, Congress attempts excessive control of the deployment of U.S. military forces, encroaching on the responsibility of the President. (87) Supporters of repeal contend that the President needs more flexibility in the conduct of foreign policy and that the time limitation in the War Powers Resolution is unconstitutional and impractical. Some holding this view contend that Congress has always had the power, through appropriations and general lawmaking, to inquire into, support, limit, or prohibit specific uses of U.S. Armed Forces if there is majority support. The War Powers Resolution does not fundamentally change this equation, it is argued, but it complicates action, misleads military opponents, and diverts attention from key policy questions.

    A third view is that the War Powers Resolution has not been adequate to accomplish its objectives and needs to be strengthened or reshaped. (88) Proponents of this view assert that Presidents have continued to introduce U.S. armed forces into hostilities without consulting Congress and without congressional authorization. Presidents have cited section 4(a)(1) on only one occasion — Mayaguez — and by the time the action was reported, it was virtually over.

    Holders of this third view have proposed various types of amendments to the War Powers Resolution. These include returning to the version originally passed by the Senate, establishing a congressional consultation group, adding a cutoff of funds, and providing for judicial review. A general discussion of these categories of possible changes follows.

    Here is a list of the nine Congressional amendment titled sections:

    Return to Senate Version: Enumerating Exceptions for Emergency Use
    Shorten or Eliminate Time Limitation
    Replace Automatic Withdrawal Requirement
    Cutoff of Funds
    Elimination of Action by Concurrent Resolution
    Expedited Procedures
    Consultation Group
    Judicial Review
    Change of Name
    United Nations Actions

    This report is worth reading.

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