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Robert Naiman

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Kucinich Calls the Question on Libya War Powers

Posted: 05/31/11 09:55 PM ET

Last week, voting on amendments on the 2012 National Defense Authorization Act, the House of Representatives began taking action to limit U.S. military involvement in Libya's civil war.

Now the House leadership has agreed to a vote on House Concurrent Resolution 51, introduced by Ohio Representative Dennis Kucinich, which would direct the President, pursuant to the War Powers Resolution, to remove U.S. armed forces from the Libya war. The vote could come as early as Wednesday afternoon.

The U.S. military intervention in Libya was never authorized by Congress, and thus violates U.S. law and the U.S. Constitution.

Some have argued that other Presidents have violated the War Powers Resolution, therefore it is no big deal. This is a breathtaking argument on its face: "everyone breaks the law." But moreover, as the New York Times noted on May 25:

many presidents, citing their power as commander in chief, have bypassed a section that says they need prior Congressional authorization to deploy forces into hostilities, except if the country is under attack. But there is far less precedent of presidents' challenging another section that says they must terminate any still-unauthorized operations after 60 days. In 1980, the Justice Department concluded that the deadline was constitutional. [my emphasis]

On May 20, the New York Times reported, referring to the 1980 Justice Department memorandum,

Such opinions are binding on the executive branch unless they are superseded by the Justice Department or the president.

When the 60 day limit expired, Jack Goldsmith, a Harvard law professor who led the Justice Department's Office of Legal Counsel in 2003 and 2004, said:

"this appears to be the first time that any president has violated the War Powers Resolution's requirement either to terminate the use of armed forces within 60 days after the initiation of hostilities or get Congress's support"

Unfortunately, as a practical matter -- whether we like it or not -- Congressional war powers are not "self-enforcing." The legal history strongly suggests that courts will not intervene if Congress fails to take action.

That's why the war powers measure introduced by Representative Kucinich is so important. It represents the first opportunity for Members of the House not just to vote against further escalation, not just to affirm that the war was never authorized, but to vote directly to bring U.S. military participation in the war to an end. You can urge your Representative to support House Concurrent Resolution 51 here.

Last week, by the lopsided vote of 416-5, the House adopted an amendment initiated by Michigan Representative John Conyers to the defense authorization prohibiting the introduction into Libya of U.S. ground troops (that is, uniformed forces, not Special Forces or CIA that are already there.)

The House also adopted by voice vote -- that is, without dissent -- an amendment introduced by Rep. Scott Garrett [R-NJ] affirming that "Nothing in this Act or any amendment made by this Act shall be construed to authorize military operations in Libya."

Jake Tapper of ABC News reported that these lopsided results in the House suggested that the Kucinich resolution calling for U.S. military withdrawal from the Libya conflict in accordance with the War Powers Resolution could pass the House.

The decisions by the Administration to go to war in Libya without Congressional authorization, and then to continue U.S. military involvement past the 60 day limit of the War Powers Resolution, if not challenged by Congress, will set a dangerous precedent. Urge your Representative to vote yes on House Concurrent Resolution 51.

UPDATE: June 1, 9AM ET: Kucinich's office says that the House leadership has postponed consideration of the resolution; it is not clear when a vote will be allowed.

UPDATE: June 1, 1pm ET Politico reports that the House Republican leadership is blocking the vote because they are afraid it will pass:

GOP fears Kucinich resolution

Seeking to avoid a showdown over Libya, House GOP leaders have pulled back from a floor vote on a resolution by Rep. Dennis Kucinich (D-Ohio) that would bar U.S. involvement in the NATO-led campaign to topple Muammar Qhadafi.

GOP leaders were scrambling on Wednesday morning to come up with an alternative plan for considering the measure. These could include having the Armed Services or Foreign Affairs committees draft back-up proposals.

Citing "lots of unrest on both sides of the aisle," a senior House GOP aide said Republican leaders are still working through their options.

Another senior Republican staffer said House Speaker John Boehner (R-Ohio) "is concerned that if this were to come to the floor now, it would pass"...

 

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