March 25, 2011

Declaring war vs. "authorizations": "Legal" conflicts and the War Powers Act

Now that Barack Obama has blatantly defied his very own edict on what constitutes a "legitimate" United States use of the military, let's take a gander at how some recent presidents handled various US military actions from the "legality" or "legitimacy" aspect. And, has the Congress abdicated its stated constitutional responsibility for declaring war?

Ronald Reagan:

  • Invasion of Grenada. The Gipper ordered troops in the tiny Caribbean island on October 25, 1983. Based on the War Powers Act, it appears Reagan's actions were "legal," since section 4(a)(1) of the Act gives the executive a 60-90 day time limit on troop action (without further congressional approval). All US forces were out of Grenada within that time frame. Stated reason for invasion: "... response to a request from the Organization of Eastern Caribbean States which had formed a collective security force to restore order in Grenada, where anarchic conditions had developed, and to protect the lives of U.S. citizens."

  • Lebanon. Reagan dithered on invoking section 4(a)(1) of the Act, mainly because he argued that US forces (as part of a multi-national effort) were involved in "imminent hostilities." Of course, many in Congress begged to differ, and the murder of 241 Marines in Beirut on October 23, 1983 gave concrete credence to those concerns. Nevertheless, Reagan and Congress had agreed to invoke section 4(a)(1) back on September 20 of that year after much back and forth. Stated reason for troops sent: to be part of Multinational Force in Lebanon.

George H. W. Bush:

  • Panama. Bush the Father reported to Congress about his decision to send troops to Panama a day after the order was given, consistent with the WPA. All US troops were removed from the country within the 90-day time limit, within the confines of the Act. Stated reason for invasion: "to protect the 35,000 American citizens in Panama, restore the democratic process, preserve the integrity of the Panama Canal treaties, and apprehend General Manuel Noriega, who had been accused of massive electoral fraud in the Panamanian elections and indicted on drug trafficking charges by two U.S. Federal courts."

  • 1991 Gulf War. The issues surrounding the WPA and this conflict are pretty elaborate. Check out just how elaborate here.

  • Somalia. On December 4, 1992 President Bush ordered troops into the eastern African nation "to protect humanitarian relief from armed gangs." The day before, the United Nations adopted Resolution 794 which allowed the US and cooperating forces "to use all necessary means to establish as soon as possible a secure environment for humanitarian relief operations..." Congress did not get around to officially approving any military action until February of the following year (and under a new president, Clinton), and several UN Security Council Resolutions had been passed based on occurrences on the ground there. By March 1994, Congress refused to authorize more funds for US action in Somalia unless President Clinton sought Congressional approval for such. (Funds were available for the process of exiting US troops, however.)

Bill Clinton:

  • Kosovo. Perhaps no other recent US intervention generated as much legal wrangling as this one. Some members of the [GOP-led] House actually filed a lawsuit to thwart further action in 1999. The suit was dismissed later that year. Other than the Senate's S.Con.Res. 21 prior to Clinton ordering strikes in Kosovo, Congress never explicitly approved of the use of force there other than defeating several measures (in both chambers) designed to stop continued US military activity. Stated reason for action: "response to the Yugoslav government's campaign of violence and repression against the ethnic Albanian population."

George W. Bush:

  • Post-9/11 & Afghanistan. After the attacks of September 11, President Bush consulted with members of Congress about steps to take in retaliation. A team from the White House and members of both houses deliberated and eventually resolutions authorizing the president to use force against those responsible were written up. "It was first considered and passed by the Senate in the morning of September 14, as Senate Joint Resolution 23, by a vote of 98-0. The House of Representatives passed it later that evening, by a vote of 420-1." One interesting tidbit that came from this was the president stating, "In signing this resolution, I maintain the longstanding position of the executive branch regarding the President's constitutional authority to use force, including the Armed Forces of the United States and regarding the constitutionality of the War Powers Resolution."

    Also interestingly, members of Congress and the president actually substituted the aforementioned Senate resolution for invoking the War Powers Act which, it appears, is "is contemplated by the language of the War Powers Resolution itself."

  • Iraq. Despite what the popular theme was (is) in the MSM these days, President Bush sought, and got, approval from both houses of Congress for the use of force against Iraq in 2002: H.J.Res. 114 by a vote of 296-133; the Senate passed the House version of H.J. Res 144 on October 11 by a vote of 77-23. The president signed the "Authorization for Use of Military Force against Iraq Resolution of 2002" into law on October 16, 2002. President Bush did indeed state "his intent to submit written reports to Congress every 60 days on matters 'relevant to this resolution.'" Stated reason for invasion: "number of violations of U.N. Security Council resolutions by Iraq regarding the obligation imposed at the end of the Gulf War in 1991 to end its chemical, biological and nuclear weapons programs;" ""to restore international peace and security in the region," among others.

Once again we see a president making use of US military force and the usual controversies that follow. Aside from the previously mentioned edict as to what constitutes "legitimate" use of US force from the Commander-in-Chief himself, our own (as in Delaware's) Vice President Joe Biden has opined on the "proper" way to use our military:

Did Joe say

“I want to make it clear. And I made it clear to the President that if he takes this nation to war with Iran without Congressional approval. I will make it my business to impeach him. That’s a fact. That is a fact.”

Why, yes he did!

But the thing is, both parties play politics when the other party holds the White House. Read again how the GOP-led Congress attacked President Clinton's Kosovo adventure, for instance. And now, some members of Congress who backed the invasion of Iraq are questioning President Obama's use of force in Libya.

I essentially stand with folks like Ron Paul on this issue and believe that Congress should "reacquire" its constitutional obligation to declare war. Essentially, I don't believe any president should have the ability to send US forces anywhere without said declaration from Congress, whether it's a scenario like Iraq (one of the more concrete cases where such a declaration should have been issued), or one like Kosovo that involved virtually all air power. The only instance I can see the executive making use of military force without congressional approval is during an attack on the United States, or the [very] imminent threat of one. This view appears to jibe quite a bit with the original Senate version of the War Powers Act, by Thomas Eagleton in 1977:

This would require prior congressional authorization for the introduction of forces into conflict abroad without a declaration of war except to respond to or forestall an armed attack against the United States or its forces or to protect U.S. citizens while evacuating them. The amendment would eliminate the construction that the President has 60 to 90 days in which he can militarily act without authorization. Opponents fear the exceptions to forestall attacks or rescue American citizens abroad would serve as a blanket authorization and might be abused, yet might not allow the needed speed of action and provide adequate flexibility in other circumstances.

Except that, certainly, I would change it to "require a declaration of war" in cases of armed conflict abroad.

Congress giving [the president] an "authorization" to use military force seems to me just another way for the legislature to abdicate real constitutional responsibility. Article I Section 8 doesn't say "To grant Authorization for War ..." It says "To declare War ..." For those who may think there is no substantive difference, then what's the problem with carrying out the Section 8 duties as written?

I know people better versed on this and related issues than myself can make better arguments pro or con. (My pal Greg at Rhymes With Right is probably one of them.) But I'm a simple man and believe things should be done as originally intended; or, if not, then change the way they should be done ... as intended. I am just weary of our nation making use of our military for purposes that I believe they were not intended. President Bush himself during campaign 2000 said he did not believe in "nation-building;" yet, that's precisely what he did in Iraq and Afghanistan. Our military should only be used to defend the United States and our allies against attack, not as, say, distributors of food.

I don't believe American men and women should lose their lives in the hope that a country like Iraq will become democratic (and sustain such). I don't believe we should spend billions upon billions of dollars on such ventures when we face massive deficits and debt right here at home. Is that old fashioned? Then call me old fashioned.

(Source material: The War Powers Resolution: After Thirty Years.)

Posted by Hube at March 25, 2011 06:49 PM | TrackBack

Comments  (We reserve the right to edit and/or delete any comments. If your comment is blocked or won't post, e-mail us and we'll post it for you.)

Hube, kudos to you for providing an excellent review of this subject. Moreover, I agree with your position on the need for a Congressional (Constitutionally required) Declaration of War, with your caveat about responding during an attack or upon an imminent threat of one. Great piece!!!

Posted by: Perry at March 26, 2011 11:28 AM

Thank you, Perry.

Posted by: Hube at March 26, 2011 11:31 AM