Middle East historian and blogger Juan Cole recently wrote a polemic against progressive U.S. critics of new U.S. war in Libya. In his polemic, he wrote, "I hope we can have a calm and civilized discussion of the rights and wrongs here."
I strongly agree with Juan that it is important for progressive critics of U.S. foreign policy to try to have a calm and civilized discussion about the issues that have been raised by the U.S. military intervention in Libya. In general, it's important to try to have calm and civilized discussions about all issues of public policy, even when - especially when - the underlying issues are matters of life and death. The alternative is nasty polemics, and a principal effect of nasty polemics is to exclude people from discussion who don't want to engage in nasty polemics. In this way the effect of nasty polemics are anti-democratic; nasty polemics tend to demobilize people and cause them to disengage, when what we need is the opposite: more engagement and more mobilization.
In this particular case, the decision of the Obama Administration to engage the country in a new Middle East war without Congressional authorization represents a long-term threat to the U.S. peace movement, because the U.S. peace movement is engaged in a long struggle to try to influence U.S. policy in the direction of less war, and Congress is a key arena in which the peace movement tries to assert influence over U.S. policy. If you take away power from Congress to determine issues of war and peace, you substantially reduce the power of the U.S. peace movement to influence issues of war and peace. Taking away Congressional war powers is to the peace movement like taking away collective bargaining is to the labor movement: a direct threat to our ability to move our agenda on behalf of our constituents.
There doesn't appear to be any plausible way right now to try to completely undo the fact that the Obama Administration has made this power grab for the war-making power of the Executive Branch, which goes beyond anything that the last Bush Administration did on war powers. Whatever else may be true about them, the U.S. invasion of Iraq in 2003 and the U.S. invasion of Afghanistan in 2001 were authorized by Congress. In the case of the Iraq war, there was a vigorous Congressional and public debate before the war took place.
There's a lot to fault about the limits of that debate, but at least there was one. And the arguments that the Bush Administration made - many of them false - in order to get Congressional approval for the war served as benchmarks for future debates over the continuation of the war, when the war and occupation moved far away from the initial justifications for them, as wars and occupations often do. This contributed significantly to efforts to end the Iraq war, which is a key reason that Congressional debate and authorization are important, even when they don't prevent a war from starting. To the extent that the need for Congressional debate and authorization prevents wars from starting, it is mainly through its deterrent effect: if you get to the point where there is a Congressional vote on an authorization, you've probably already lost in the short run. But if Congressional approval is necessary, then the only wars that are going to start are ones that Congress will approve.
But although there's no plausible way right now for Congress to try to completely undo what President Obama has done to Congressional war powers, now that Congress is back in session - the Senate comes back today and the House comes back tomorrow - Congress can try to limit the damage of this precedent by asserting its own war powers. Congress could, for example, expressly prohibit the introduction of U.S. ground forces into Libya. Congress could establish a timetable for the withdrawal of U.S. forces from the conflict, or require explicit authorization beyond a certain time period. Congress could establish a ceiling on how much money the Pentagon can spend on the conflict without further authorization. [You can contact your Representative here.]
This is not, as some would have it, "merely an issue of process." Is the right to challenge the government's ability to arrest and detain you "merely an issue of process?" Of course, it is not. The right to challenge the government's ability to arrest and detain you helps keep innocent people out of jail. The right of Congress to debate and authorize a military intervention before it takes place if the country or its armed forces have not been attacked helps keep us out of unjust wars. Habeas corpus doesn't keep all innocent people out of jail, and the need for Congressional debate and authorization doesn't stop all unjust wars, but if keeping innocent people out of jail is something that you care about, the weakening of habeas corpus is not something that you should take lightly; and if stopping unjust wars is something that you care about, the weakening of Congressional war powers is not something that you should take lightly.
If you still think that the weakening of Congressional war powers is something unimportant to the general public - "inside baseball" - consider this: you've probably received at some time an email from some organization that has asked you to take some action on some issue of war and peace. The last time you were asked to take some action, what action were you asked to take? Probably the last action you were asked to take was to write or call your representatives in Congress. So, when the Administration acted without Congressional authorization, when it established a precedent that Congress will have less say about when the country goes to war, it was reducing your ability to intervene in U.S. government policy; it was reducing the ability of organizations you support to intervene in U.S. government policy.
And the precedent that has been set here, especially if Congress does not take affirmative action to reassert its war powers, is extremely dangerous. If President Obama can engage the country in a war in Libya with a "recess bombing" which has not been authorized by Congress, what's to stop a future President from doing the same thing in Iran? Suppose that some Iranians organize an armed insurrection against the Iranian government. Suppose that the Iranian government moves to suppress the insurrection with force. Suppose the Iranian government appears to be on the verge of putting down the insurrection, and the armed insurgents appeal for outside military assistance. And suppose there that were a Congressional recess coming up. If the Administration waits until the Congressional recess so it can bomb Iran in support of the armed insurrection without Congressional authorization, would that be ok with you?
The claim that the President had to act when Congress was out of session because it was an emergency conveniently ignores the fact that it was it an emergency that was foreseen when Congress was in session. The Security Council debated when Congress was in session. The Arab League debated when Congress was in session. And the U.S. military operation was planned when Congress was in session. Indeed, the same day that the Administration went to the Security Council, it briefed some Members of Congress - while Congress was in session. Moreover, of course, Congress can come back into session anytime. If it was an emergency, Congress could convene.
Every country is different, and every military intervention is different. But there are some patterns here that should trouble us.
One pattern is the invocation of an apparent emergency to short-circuit debate over a U.S military intervention that may turn out to have a much greater cost, duration and scope than people were made aware of at the time of the emergency that was used to sell it. In Iraq, it was Iraq's alleged possession of weapons of mass destruction: "don't let the smoking gun be a mushroom cloud." In Afghanistan, the emergency was the 9/11 terrorist attacks. In Libya, the emergency was the expected Libyan government assault on Benghazi. Note that while in the case of Iraq, the weapons of mass destruction story turned out to be a hoax, in the case of Afghanistan, there really was a terrorist attack on 9/11. But the "emergency" effect was the same. Because it's an emergency - it's always an emergency - there's no time to think, no time to deliberate, no time to debate, no time to evaluate possible alternative courses of action. There's only one possible course of action, and that's already been decided: war. The role assigned to the public by the Administration is just to agree with what's already been decided.
Nine years after the U.S. invasion of Afghanistan, Al Qaeda is essentially gone from Afghanistan and 100,000 U.S. troops remain; more than a thousand Americans and tens of thousands of Afghans have been killed. The authorization of force for the invasion of Afghanistan has been used as the basis for U.S. military intervention in Pakistan, Yemen, Somalia, and the Philippines, as well as for the indefinite detention facilities at Guantanamo and Bagram. Now that you know what was inside the bag, don't you wish that we had had the opportunity to examine its contents more carefully before we purchased it?
Eight years after the U.S. invasion of Iraq, there were no weapons of mass destruction, Saddam Hussein has been executed, the Baath Party is illegal in Iraq, thousands of Americans and hundreds of thousands of Iraqis have been killed, the US-installed Iraqi government suppresses demonstrations with force, and we're still there. Don't you wish that we had had more opportunity to examine the contents of this bag before we purchased it?
And now we have a new war. And in this case, we didn't get to examine the bag beforehand at all, or even make a purchase. We've just been informed that the purchase was complete - and here's your bag. And there a lot of unanswered questions. How much is this war going to cost, at a time when many in Washington want to cut nutritional assistance for poor children, rent subsidies for poor families, and Social Security benefits? Now that Libyan government forces have retreated and rebel forces are advancing, are we "protecting civilians," or are we supporting the rebel offensive? If we are intervening in a civil war, shouldn't Congress debate that? If actual effect of our military activity on the ground is to support a rebel offensive to overthrow the Libyan government militarily - regardless of Administration statements that that is not our objective - shouldn't Congress debate that?
What is the exit strategy? Italy has proposed an immediate ceasefire and negotiations to end the violent conflict in Libya, allowing Qaddafi to go into exile. What is the position of the U.S. on the Italian proposal? Does the U.S. support real negotiations to resolve the crisis, or is it the de facto position of the U.S. that the war must continue, with the U.S. de facto supporting the armed rebels' offensive, until the Libyan government is overthrown by force? If it is the de facto U.S. position that the war must continue until the Libyan government is overthrown, what is the U.S. plan for running Libya after the Libyan government is overthrown? Are the armed rebels to become the new Libyan government? Has a determination been made that armed rebels from Benghazi will be accepted by people in Tripoli as their legitimate government? If people in Tripoli organize an armed rebellion against a new government led by people from Benghazi, what will our position on that be? Will we assist the new government in suppressing such a rebellion with force? And what role is envisioned for Western oil companies in a new Libyan government's management of Libya's oil wealth?
It was precisely to try to prevent the situation that we are in now - a new war that Congress has not had the opportunity to debate and authorize - that Congress passed the War Powers Resolution in 1973. Congress was trying to prevent the President from circumventing Congress by creating "facts on the ground." Contrary to what many have claimed, President Obama has not obeyed the War Powers Resolution in the case of the U.S. military intervention in Libya. The War Powers Resolution - which is a law, here's a link to the U.S. code - states explicitly that military force must be used pursuant to Congressional authorization unless the U.S. or its armed forces are attacked:
(c) Presidential executive power as Commander-in-Chief; limitation The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.
As a candidate for President in December 2007, former constitutional law professor and then U.S. Senator Barack Obama understood the issue perfectly well. He was asked by the Boston Globe:
In what circumstances, if any, would the president have constitutional authority to bomb Iran without seeking a use-of-force authorization from Congress? (Specifically, what about the strategic bombing of suspected nuclear sites -- a situation that does not involve stopping an IMMINENT threat?)
And Obama responded:
The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.
This was the same Barack Obama who said, also as a candidate for President, in March 2007:
I was a constitutional law professor, which means unlike the current president I actually respect the Constitution.
The Administration's assault on the war powers of Congress is extremely grave. It is essential for efforts to prevent wars in the future that Congress take steps to limit this assault on Congressional war powers. You can communicate with your Representative here.
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American inability to perform as an ally in past decades has meant that a unilateral process has always been applied in war, from your perspective. This is in fact the true situation today, and one that seems to be of great concern. Most countries do not have this problem mainly because they do not often go to war. However, Mr Bush did state that, "If you aren't with us, you are against us." Those words today have a profound meaning apart from when he so foolishly stated them. The world today is always in a state of war, and when the US gets it's finances in order she should stay out of world affairs, and upon return she can look forward to being a part of most conflict resolutions taking place. That is really the true problem but never stated.
Agreed?
Having said that I am glad we halted Kaddafi and that he might be treating with the Italians to maybe get the hell gone for good.
There is absolutely no comparison to Bush II and the right-wing media rush to war in Iraq in the present actions. Limits of our exercise of military power and true international involvement could be a harbinger of a new, less aggressive US foreign policy and a more peaceful international rule of law.
"There doesn't appear to be any plausible way right now to try to completely undo the fact that the Obama Administration has made this power grab for the war-making power of the Executive Branch,..."
This is nonsense. Saying this doesn't make it so. Obama is in FULL compliance with legislation. In essence he has 60 days to do as he pleases. If you do not like that he has done so, you have a problem with the legislation. Act to change it.
Section 1541c says that the President is only using force constitutionally pursuant to:
(1) a declaration of war,
(2) specific statutory authorization, or
(3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.
The legislation, quite far from saying the President has 60 days to do anything he pleases, narrowly defines only three cases where he can take action. None of those has happened in Libya (UN resolutions are not statutory authorization).
If he withdraws within 60 days, he would be complying with section 1544b, but that has no effect on whether he complied with section 1541c.
So how can you say he's in full compliance unless you're willing to ignore 1541c?
Saying he's in full compliance doesn't make it so (sorry couldn't resist). I've quoted the law to show how he's not, I'm not just saying so. Demonstrate how he meets 1541c of the law if you want to claim "full compliance."
-FB's Card-Carrying American
From here... http://en.wikipedia.org/wiki/War_Powers_Clause
Sounds like he has 60 days to do as he pleases to me.
1. Liberals can read.
2. Trying to engage Conservatives in a reasonable discussion of "overstepping bounds" would be a completely futile and somewhat ridiculous exercise.
If there were ever a great reason to help a nation militarily, this is it.
lets never attack Iran. Lets get out of Iraq, but lets HELP the Libyan people throw off this murderous thug, who would kill 10s of thousands, and possibly many more, simply because they would like a leader other than him.
No we're not. We are leading a UN coalition of nations in an effort to stop Ghadaffi from putting down a rebel army with military force in an effort to hold onto power for himself and his sons.
"""If there were ever a great reason to help a nation militarily, this is it."""
As you obviuosly didn't feel the same way about 40,000 dead Kurds, I call you a hypocrite.
"""lets never attack Iran"""
It's too late. Any future president now need only wait until there's another demonstration in Tehran in which some civilians get shot, then he may attack, citing the Obama doctrine.
Thanks.
Taking out Gadaffi is going to be relatively simple, and not particularly costly. It is simply the right thing to do, and since it IS possible, we should do it.
Whats the end game WITHOUT taking out Gadaffi? doing business with him as usual? waiting for the mass killings, disappearances and torture that would occur when he regains full control?
You call me a hypocrite? I, at least, would save SOMEONE when possible, while you would have us simply watch as a madman does unimaginable damage to both his nation and our image as force for some sort of good with regard to the region. all to save some money.
and, no, Iran is a totally different story. every nation Is different in terms of such strategy.
I like your Iran comparison, and I believe this Libya action makes it easier to justify action against Iran as soon as an opportunity arises. That must have been part of the calculus in deciding to take these steps.
I also like your question, "...what is the U.S. plan for running Libya after the Libyan government is overthrown?" The most likely answer, based on recent history, is that whoever ends up in charge (UN, NATO, US, France, Italy, and others are all candidates, but not the people of Libya), will install a faux-representative government that will have all the Potemkin-village qualities of the Afghan and Iraqi governments.
Meanwhile, the original, peaceful, pro-democracy agitators (remember them?) will have to start all over again.
For the most part the UN does what the US tells it to, and if they won't, NATO will, and if not, the President will cook up some bogus Coalition of the Willing. Either way, the Brits will usually cooperate with the US on it. The Council on Foreign Relations doesn't actually control anything or have much influence. Bush and Cheney and their neo-con buddies got us into the Iraq war, and told enough lies that the UN went along with it. Bush's father got us into the previous round of the Iraq war. But it's really the whole military-industrial complex business that runs it, not just a few corrupt politicians or Big Oil.
Or you can continue to grouse about it on the sidelines and claim there's some sort of Constitutional certainty that no President has apparently seen; no Congress, either, given that no one's been impeached for usurping war powers.
Nobody's been impeached for usurping war powers yet because Presidents have usually asked Congress's permission first, and some decades ago the President got Congress to pass the War Powers Act which is pretty much a blanket authorization for the President to start a war and then ask permission later, but he still has to follow some rules, not just call himself The Decider. Even Dubya Bush went through the formalities of lying to the public and whining a lot to get Congress to give him permission. Obama's not doing that, so it's time to start the impeachment process.
40,000 kurds were gassed, hypocrite. Cry for them.
(2) specific statutory authorization
Technically all treaties the US enters into are binding as US law the same way as anything Congress passes. This is why it requires a supermajority in the Senate to pass any treaties.
With that all on the table the statutory authorization here is the UN Resolution. As all treaties the US enters into count as law in the US and the UN authorized action under the security resolution by the terms of the UN Charter and other treaties which make the US part of the organization the resolution has statutory force in the US. Ergo technically speaking, because the UN specifically authorized the action, Obama has the legal cover to act.
Now I agree he should have asked Congress for authorization but this situation is NOTHING like what happened in Iraq. Unlike Bush who used a rather flimsy pretext from an existing resolution while alienating most of our allies Obama is going in with the backing of the UN, NATO, and the Arab League. Obama, unlike Bush, did not spend a year drumming up support for an unnecessary war but waited a few weeks after Libya exploded to take real action. If anything Obama's approach has been in accord with international law instead of in defiance of it.
http://www.law.cornell.edu/uscode/50/usc_sec_50_00001547----000-.html
§ 1547. Interpretation of joint resolution
(a) Inferences from any law or treaty
Authority to introduce United States Armed Forces into hostilities or into situations wherein involvement in hostilities is clearly indicated by the circumstances shall not be inferred—
(1) from any provision of law (whether or not in effect before November 7, 1973), including any provision contained in any appropriation Act, unless such provision specifically authorizes the introduction of United States Armed Forces into hostilities or into such situations and states that it is intended to constitute specific statutory authorization within the meaning of this chapter; or
(2) from any treaty heretofore or hereafter ratified unless such treaty is implemented by legislation specifically authorizing the introduction of United States Armed Forces into hostilities or into such situations and stating that it is intended to constitute specific statutory authorization within the meaning of this chapter.
I should note, however, that you never offered such a rebuttal when challenged on the illogic of opposing military action on the grounds of potential civilian casualties while ignoring the imminent civilian casualties happening thanks to a lack of outside protection.
I'd take your views more seriously if they weren't so obviously doctrinaire. Legally Obama is in a grey area but morally and politically his actions are not in the same league as Bush's which you imply.
In fact, treaties must be implemented into US law by the Congress in order for them to be the law of the land. In the UN's example, this would be the United Nations Participation Act of 1945 (UNPA) and amended in 1949 (http://avalon.law.yale.edu/20th_century/decad031.asp). Such a law would not be required if ratification alone made it the law of the land.
Treaties require Senate approval not because that makes them law, but because the framers wanted a check on Presidential power and a sanity check on promises he's making overseas.
There is only one exception to the constitutional requirement for congressional approval for the use of military forces in the UNPA. It says that if Congress has already approved US forces to be dedicated to the Article 43 UN standing force (which was never implemented), the President would not need further congressional approval to use that force for UNSC Article 42 action. Even in this exception, the Congress required authorization for the initial force.
Nowhere in US law, does it say the President can use US forces, without Congressional approval of that force at all, if the UN says so.
I'd love to hear back from you.
-FB's Card-Carrying American
- the executiove branch makes an emergency certification that a genocide or massive and disproportionate slaughter of civilians in imminent within a period of time in which an emergency convening of congress is not possible, such as 24 hours, and
- proof of imminent genocide must include testimony or witness by a broad and credible cross section of nationals of the group affected, such as the numerous resigned diplomats and members of the Gaddafi government who made direct appeal to the UN
- no ground troops shall be deployed, ever and
- duration of action to be no more than the period of time required to convene emergency session of congress
- remedy for failing to convene emergency session of congress shall be immediate impeachment
I hope, moving forward, that some of the strange alliances we saw during Libya intervention will hold and gather to oppose what are vastly more expensive and costly of civilian lives, the wars in Afghanistan and Iraq. What made the Authorization for the Use of Force permanent? Is this not the same as placing unlimited war-making powers into executive hands, especially as the language is incredibly broad "all necessary force...in the GLOBAL war on terror?"
Seems to me this Libya thing is small potatoes and we're all barking up the wrong tree.
For Afghanistan, the answer is the wording the Congress chose to use (http://en.wikipedia.org/wiki/Authorization_for_Use_of_Military_Force_Against_Terrorists). Congress could have put a time limit in there, and didn't. Also, nothing prevents the Congress from removing that authorization at any time under the War Powers Act. Kucinich's measure, H. Con. Res. 28 was an attempt to do exactly that. It went down in flames, thus providing continuing congressional approval for the use of military force in Afghanistan.
A lot of criticism can be accurately leveled at the Afghanistan war. That it wasn't and isn't approved by Congress is NOT one of those criticisms.
-FB's Card-Carrying American
One can very easily argue that not acting in Lybia would create an environment for terrorism to thrive, and as such the president has the authority/obligation to act and need not worry anout impeachment. After all isn't that how we are currently carrying out militray operations (beyond just air strikes) both in Pakistan and Yemen?