Congress And The War Powers Resolutions: Libya Airstrikes Constitutionally Legit
Under the Constitution, only Congress has the power to “declare war.” The president, however, has ample authority to use military force without a “declaration of war” where the anticipated U.S. engagement in hostilities is limited in its expected nature, scope and duration. Presidential administrations of both political parties have recognized a long tradition that supports this use of force. And Congress has acknowledged its legitimacy as well.
The authority for the president to act without specific congressional authorization is set out in two opinions of the Office of Legal Counsel. The first, issued in 1994, defends the plan to send 20,000 troops into Haiti and the second, issued in 1995, provides the legal authority for the use of air power in Bosnia. (I should note that I was head of OLC at the time these opinions were issued).
As these opinions note, the structure of the War Powers Resolution enacted by Congress necessarily presupposes the existence of unilateral presidential authority to deploy armed forces “into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances.” The resolution requires that, in the absence of a declaration of war, the president must report to Congress within 48 hours of introducing armed forces into such circumstances and must terminate the use of U.S. armed forces within 60 days unless Congress permits otherwise. This structure makes sense only if the president may introduce troops into hostilities or potential hostilities without prior authorization by the Congress: the resolution regulates such action by the president and seeks to set limits to it.
President Obama has fully complied with the reporting requirements set out by Congress in the War Powers Resolution. To be sure, the resolution declares that it should not be construed to grant any new authority to the president. But it obviously assumes that the president already had such authority, and sets out reporting (and subsequent withdrawal) requirements when he exercises that power.
It has been 15 years since these OLC opinions were issued and widely discussed. In that time, Congress has continued to provide for military forces to be deployed throughout the world without placing any restrictions that would preclude their use in circumstances such as those presented by Haiti, Bosnia and Libya. Under well-established precedents endorsed by both the executive and congressional branches of the national government, there is no doubt of the legitimacy of the president’s use of force in Libya.
By: Walter Dellinger, Visiting Professor of Law, Harvard University; Former Assistant Attorney General and Head, Office of Legal Council. Article published in The Arena, Politico, March 22, 2011
On Middle East, Obama Took Only Path Available To U.S.
There’s been a lot of criticism of President Obama for being too slow to support the Mideast’s popular uprisings, especially in Libya.
“Feeble,” “incoherent” and “not showing leadership” are some of the complaints I get from readers from both sides of the political spectrum. At moments, I’ve felt the same: The White House’s Mideast team is weak, his “peace process” diplomacy has failed, his support of pro-democracy rebels is conflicted.
Yet, after reflecting on a recent visit to Egypt and conversations with experts in the region, I’ve concluded that no U.S. administration could have acted more decisively to aid Arab rebels. Any president would have been constricted by the same factors Obama faced.
Let’s start with Libya, where Obama hesitated for weeks to intervene, but has now agreed to a U.N.-backed no-fly zone that aims to stop Col. Moammar Gadhafi from slaughtering his own people.
In deciding how to act, Obama was haunted by the legacy of the Iraq war. That ill-conceived conflict and failed occupation turned the entire Middle East, including democrats, against U.S. interventions. Egyptian rebel leaders made that point to me over and over. Imposing democracy from above, a la Iraq, is out.
So unilateral U.S. intervention in Libya was out of the question. Moreover, the Pentagon strongly opposed intervention in another Muslim country. U.S. generals feared it would take ground forces to get rid of Gadhafi.
Only after the Arab League endorsed a no-fly zone March 12 (and called for United Nations support) could the White House press for a vote by the U.N. Security Council. The vote meant – in theory, at least – that Arab countries could provide cover for action by France and Britain, with the United States in a supporting role. Even so, had Gadhafi not been on the verge of committing large-scale atrocities against civilians in full view of the world, Obama might not have concurred.
However, the Libya story is but a tragic sideshow. The fate of the region will turn on the results of democratic experiments in Egypt and events in Yemen, Bahrain, and Saudi Arabia.
The Obama-ites were slow to support Egyptian rebels, but that may have been a godsend. Much of Egypt’s newfound pride lies with the fact that its rebels made their revolution on their own.
Now is the moment when U.S. officials should back democratic Egyptians (and Tunisians) in their push for fair elections and an open constitutional process. Secretary of State Hillary Rodham Clinton, who just visited both countries, seems to get it. But in their eagerness to avoid interference in Egypt’s politics, U.S. officials may be taking an approach that’s too hands-off.
The president’s ambivalence has also stemmed, however, from the fact that we have sharply conflicting interests in the region.
In theory, we back political reform in the Middle East, in the hope that Arab states can build democratic institutions in the long run. If they succeed, terrorists may find less fertile ground in the region.
Yet in the short run, the United States still faces crucial security threats from Iran and from Islamist terrorists. Our autocratic Arab allies helped us fight these threats. Their demise is likely to create instability in coming months or years that will enable those threats to increase.
This conflict underlay the slow support for change in Egypt. Hosni Mubarak’s intelligence service was aggressive in pursuit of Islamist terrorists, and he was a key Sunni ally in containing Shiite Tehran. In the new Egypt (and Tunisia, and Libya, if Gadhafi falls), intelligence services will be curbed. This is a good thing, as the secret police repressed their own people. But it will also make it easier for terrorist networks to regroup in the region.
At least in Egypt, the White House can still rely on a close relationship with the army, which will remain a power center for the foreseeable future. In the Arabian Peninsula and the gulf, however, the democracy-vs.-security conflict makes it almost impossible to shape a coherent policy.
Gulf rulers like Saudi Arabia’s King Abdullah want Obama to forget about democracy and focus on security. Such a choice seemed possible in the last decade: George W. Bush promoted Mideast democracy in his first term; then, when that backfired, he emphasized Mideast security in his second term. But that choice is not possible now.
The administration has tried, unsuccessfully, to encourage the president of Yemen to usher in peaceful democratic change. Neither ruler nor rebels seem able to make the necessary compromises, which means U.S. officials probably can’t save Ali Abdullah Saleh. Yet if he falls, this country, just below Saudi Arabia, may relapse into tribal warfare. This would make it easier for al-Qaida in the Arabian Peninsula to flourish.
In Bahrain, the revolt of a largely Shiite population against its Sunni rulers presents the greatest danger to U.S. interests. This island kingdom is connected by a causeway to Saudi Arabia, whose eastern oil region is dominated by its Shiite minority. The Saudis fear that if Bahrain’s rulers fall, Iran will have the perfect base from which to push Saudi Shiites to rebel.
Last week, over Obama’s objections, the Saudi monarch sent troops across the causeway to help crush Bahrain’s rebels. He won’t listen when U.S. officials urge him (and Bahrain’s ruler) to give more representation to their Shiites. Obama’s team says this will head off trouble; Abdullah believes it will create more.
The Saudis think Obama is too strong on democracy and weak on security. Obama’s critics slam him for being too weak on democracy – or on security. Few realize he is caught in a historical bind that requires him to be strong on both, even though the two contradict each other – at least in the short term. Bush couldn’t resolve that contradiction; Obama has no choice but to try.
By: Trudy Rubin, Columnist, The Philadelphia Inquirer, March 22, 2011
Realism Or Politics: The Council On Foreign Relations Richard Haass Has A Credibility Problem
Meet The Press had a very interesting cast of characters today for their round table discussion on the events occuring in Libya. Panelists included Helen Cooper, White House Correspondent for the New York Times; Andrea Mitchell, NBC News Chief Foreign Affairs Correspondent; Michael Hayden, Former Director of the NSA and CIA; John Miklaszewski, NBC News Chief Pentagon Correspondent; and Richard Haass, President of The Council on Foreign Relations.
None of the input by these elitist panelist’s came as a surprise. In fact many of their responses were predictable. Cooper, Mitchell and Miklaszewski obviously wanted to use their airtime to promote their next story..to keep the news cycle going. That’s their job so more power to them. Hayden, as a George W. Bush appointee, surely would not suddenly have a change of heart and say anything contrary to the proven failed policies of that administration. Richard Haass, in symphony with Hayden, played his “bad cop” role to the hilt. Haass never seemed to miss a step in his criticism of the Obama administrations handling of Libya (excerpted comments):
David Gregory, the host (and I use that term lightly) of Meet The Press, Began the discussion: I want to talk, however, about how much is on the president’s plate right now. You talk about crisis management and a confluence of crisis. We’ve pulled together some cover stories from Time magazine–I want to put it up there on the screen–“Target Gaddafi.” The next one, “Hitting Home: Tripoli Under Attack.” And the next one, “Meltdown.”
MR. RICHARD HAASS: It’s a lot to manage, but also it raises the importance of an administration having its priorities. You’ve got a lot to manage with Japan, you’ve got a lot to manage with what’s going on in the broader Middle East, you’ve got a lot to manage what’s going on in the United States in terms of our economy and our deficit. So one of the real questions is why are we doing as much are we are doing in Libya? So many of your guests are talking about too little too late. Let me give you another idea, David, too much too late. In times of crisis and multiple crisis, administrations have to figure out their priorities. They got to do some triage. The–to me, the big problem is not what we haven’t done, it is what we are doing.
MR. GREGORY: Richard, you, you just have broad concerns as you, as you penned a piece in the Wall Street Journal earlier this month, “The US should keep out of Libya.”
MR. HAASS: Again, our interests aren’t vital. We’re talking about 2 percent of the world’s oil. Yes, there’s a humanitarian situation on, but at the risk of seeming a bit cold, it is not a humanitarian crisis on the scale say of Rwanda. We don’t have nearly 100–a million people, innocent men, women and children whose lives are threatened. This is something much more modest. This is a civil war. In civil wars, people get killed, unfortunately. But we shouldn’t kid ourselves. This is not a humanitarian intervention, this is U.S. political, military intervention in a civil conflict which, by the way, history suggests, often prolongs the civil conflict. And, as several people have already pointed out, what is step B? Whether Gadhafi complies with what we want or whether he resists successfully, either way, we are going to be stuck with the aftermath of essentially having to take ownership of Libya with others. And just because others are willing to share in something, as so many people point out, doesn’t make it a better policy. It just means the costs are going to be distributed. But the policy itself is seriously flawed.
MR. GREGORY: The big ideas and are we getting them right?
MR. HAASS: Mike Mullen says the big idea, the biggest single national security threat facing the United States is our economy, it’s our fiscal situation. This will not make it better. Instead, we are ignoring a previous secretary of state, John Quincy Adams, someone you haven’t had on the show in awhile. We are going abroad in search of monsters to destroy. There’s any number of monsters. But is this, right now, something that’s strategically necessary and vital for the United States, given all that’s happening in places like Egypt, Bahrain, Saudi Arabia, around the world, with all that we need to repair at home? The answer, I would think, is not. And that’s the big idea the administration’s missing. It’s not enough to simply want to do good around the world wherever we see bad. We’ve got to ask ourselves, where can we do good, at what cost, against what else we might have to do?
All of Haass’ comments gave me a flashback. Iran immediately came to mind. Haass, Iran..Haass, Iran. When is enough actually enough..when is enough not enough?
The answer is Mr. Haass, you’ve got a credibility problem. The following article appeared in Newsweek on January 22, 2010. It was written by none other than Richard Haass:
Enough Is Enough
Why we can no longer remain on the sidelines in the struggle for regime change in Iran.
Two schools of thought have traditionally competed to determine how America should approach the world. Realists believe we should care most about what states do beyond their borders—that influencing their foreign policy ought to be Washington’s priority. Neoconservatives often contend the opposite: they argue that what matters most is the nature of other countries, what happens inside their borders. The neocons believe this both for moral reasons and because democracies (at least mature ones) treat their neighbors better than do authoritarian regimes.
I am a card-carrying realist on the grounds that ousting regimes and replacing them with something better is easier said than done. I also believe that Washington, in most cases, doesn’t have the luxury of trying. The United States must, for example, work with undemocratic China to rein in North Korea and with autocratic Russia to reduce each side’s nuclear arsenal. This debate is anything but academic. It’s at the core of what is likely to be the most compelling international story of 2010: Iran.
In the wake of 9/11, the Bush administration judged incorrectly that Iran was on the verge of revolution and decided that dealing directly with Tehran would provide a lifeline to an evil government soon to be swept away by history’s tide. A valuable opportunity to limit Iran’s nuclear program may have been lost as a result. The incoming Obama administration reversed this approach and expressed a willingness to talk to Iran without preconditions. This president (like George H.W. Bush, whose emissaries met with Chinese leaders soon after Tiananmen Square) is cut more from the realist cloth. Diplomacy and negotiations are seen not as favors to bestow but as tools to employ. The other options—using military force against Iranian nuclear facilities or living with an Iranian nuclear bomb—were judged to be tremendously unattractive. And if diplomacy failed, Obama reasoned, it would be easier to build domestic and international support for more robust sanctions. At the time, I agreed with him.
I’ve changed my mind. The nuclear talks are going nowhere. The Iranians appear intent on developing the means to produce a nuclear weapon; there is no other explanation for the secret uranium-enrichment facility discovered near the holy city of Qum. Fortunately, their nuclear program appears to have hit some technical snags, which puts off the need to decide whether to launch a preventive strike. Instead we should be focusing on another fact: Iran may be closer to profound political change than at any time since the revolution that ousted the shah 30 years ago.
The authorities overreached in their blatant manipulation of last June’s presidential election, and then made matters worse by brutally repressing those who protested. Supreme Leader Ayatollah Ali Khamenei has lost much of his legitimacy, as has the “elected” president, Mahmoud Ahmadinejad. The opposition Green Movement has grown larger and stronger than many predicted.
The United States, European governments, and others should shift their Iran policy toward increasing the prospects for political change. Leaders should speak out for the Iranian people and their rights. President Obama did this on Dec. 28 after several protesters were killed on the Shia holy day of Ashura, and he should do so again. So should congressional and world leaders. Iran’s Revolutionary Guards should be singled out for sanctions. Lists of their extensive financial holdings can be published on the Internet. The United States should press the European Union and others not to trade or provide financing to selected entities controlled by the Guards. Just to cite one example: the Revolutionary Guards now own a majority share of Iran’s principal telecommunications firm; no company should furnish it the technology to deny or monitor Internet use.
New funding for the project housed at Yale University that documents human-rights abuses in Iran is warranted. If the U.S. government won’t reverse its decision not to provide the money, then a foundation or wealthy individuals should step in. Such a registry might deter some members of the Guards or the million-strong Basij militia it controls from attacking or torturing members of the opposition. And even if not, the gesture will signal to Iranians that the world is taking note of their struggle.
It is essential to bolster what people in Iran know. Outsiders can help to provide access to the Internet, the medium that may be the most important means for getting information into Iran and facilitating communication among the opposition. The opposition also needs financial support from the Iranian diaspora so that dissidents can stay politically active once they have lost their jobs.
Just as important as what to do is what to avoid. Congressmen and senior administration figures should avoid meeting with the regime. Any and all help for Iran’s opposition should be nonviolent. Iran’s opposition should be supported by Western governments, not led. In this vein, outsiders should refrain from articulating specific political objectives other than support for democracy and an end to violence and unlawful detention. Sanctions on Iran’s gasoline imports and refining, currently being debated in Congress, should be pursued at the United Nations so international focus does not switch from the illegality of Iran’s behavior to the legality of unilateral American sanctions. Working-level negotiations on the nuclear question should continue. But if there is an unexpected breakthrough, Iran’s reward should be limited. Full normalization of relations should be linked to meaningful reform of Iran’s politics and an end to Tehran’s support of terrorism.
Critics will say promoting regime change will encourage Iranian authorities to tar the opposition as pawns of the West. But the regime is already doing so. Outsiders should act to strengthen the opposition and to deepen rifts among the rulers. This process is underway, and while it will take time, it promises the first good chance in decades to bring about an Iran that, even if less than a model country, would nonetheless act considerably better at home and abroad. Even a realist should recognize that it’s an opportunity not to be missed.
Which is it Mr. Haass…Is the humanitarian crisis in Libya too small or is there just too little oil? Are you a realist or just another political hack?
By: raemd95: Excerpts are quotes from Meet The Press, March 20, 2011; Enough is Enough: By Richard N. Haass, originally published in Newsweek, January 22, 2010
The Neocons Are Trying To Talk Us Into War — Again!
“They have learned nothing and forgotten nothing,” Voltaire said of the members of the Hapsburg dynasty of his day. The same might be said of the American hawks who are calling for U.S. military intervention in Libya’s civil war.
Sens. John McCain and Joe Lieberman, along with others, have raised the possibility of establishing “no-fly zones” in Libya, along the lines of those in Iraq between the end of the Gulf War in 1991 and the beginning of the Iraq War in 2003, in order to prevent Libyan dictator Moammar Gadhafi from using his air force to bomb the rebels seeking to overthrow his regime. Another suggestion is to help Libyan rebels establish secure enclaves, from which they can capture the rest of the country from forces loyal to Gadhafi.
The implication is that the enforcement of “no-fly zones,” by the U.S. alone or with NATO allies, would be a moderate, reasonable measure short of war, like a trade embargo. In reality, declaring and enforcing a no-fly zone in Libya would be a radical act of war. It would require the U.S. not only to shoot down Libyan military aircraft but also to bomb Libya in order to destroy anti-aircraft defenses. Under any legal theory, bombing a foreign government’s territory and blasting its air force out of the sky is war.
Could America’s war in Libya remain limited? The hawks glibly promise that the U.S. could limit its participation in the Libyan civil war to airstrikes, leaving the fighting to Libyan rebels.
These assurances by the hawks are ominously familiar. Remember the phrase “lift-and-strike”? During the wars of the Yugoslav succession in the 1990s, Washington’s armchair generals claimed that Serbia could easily be defeated if the U.S. lifted the arms embargo on Serbia’s enemies and engaged in a few antiseptic airstrikes. Instead, the ultimate result was a full-scale war by NATO. Serbia capitulated only when it was faced with the possibility of a ground invasion by NATO troops.
Undeterred by the failure of lift-and-strike in the Balkans, neoconservatives proposed the same discredited strategy as a way to remove Saddam Hussein from power in Iraq. Paul Wolfowitz and others proposed the creation of enclaves in Iraq, from which anti-Saddam forces under the protection of U.S. airpower could topple the tyrant. Critics who knew something about the military dismissed this as the “Bay of Goats” strategy, comparing it to the Kennedy administration’s failed “Bay of Pigs” operation that was intended to overthrow Fidel Castro without direct U.S. military involvement by landing American-armed Cuban exiles in Cuba. In Iraq, as in the Balkans, the ultimate result was an all-out U.S. invasion followed by an occupation.
In Afghanistan, Afghan rebels played a key role in deposing the Taliban regime. But contrary to the promises of the Bush administration that the Afghan War would be short and decisive, the objective was redefined from removing the Taliban to “nation-building” and the conflict was then thoroughly Americanized. The result is today’s seemingly endless, expensive Afghan quagmire.
The lesson of these three wars is that the rhetoric of lift-and-strike is a gateway drug that leads to all-out American military invasion and occupation. Once the U.S. has committed itself to using limited military force to depose a foreign regime, the pressure to “stay the course” becomes irresistible. If lift-and-strike were to fail in Libya, the same neocon hawks who promised that it would succeed would not apologize for their mistake. Instead, they would up the ante. They would call for escalating American involvement further, because America’s prestige would now be on the line. They would denounce any alternative as a cowardly policy of “cut and run.” And as soon as any American soldiers died in Libya, the hawks would claim that we would be betraying their memory, unless we conquered Libya and occupied it for years or decades until it became a functioning, pro-American democracy.
Those who are promoting an American war against Gadhafi must answer the question: “You and whose army?” The term “jingoism” comes from a Victorian British music-hall ditty: “We don’t want to fight but by Jingo if we do,/ We’ve got the ships, we’ve got the men, we’ve got the money too.” Unfortunately for 21st-century America’s jingoes, we haven’t got the ships, the men or the money. The continuing wars in Iraq and Afghanistan have stretched U.S. military manpower to the limits. The U.S. has paid for these wars by borrowing rather than taxation. The long-term costs of these conflicts, including medical care for maimed American soldiers, will run into the trillions, according to the economists Joseph Stiglitz and Linda Bilmes.
If a lift-and-strike policy failed, and the result was a full-scale American war in Libya, how would Sen. McCain propose to pay for it? Republicans since Reagan have preferred to use deficit spending rather than taxes to pay for wars and military buildups. No doubt the Republican hawks would support paying for a Libyan war, like the Iraq and Afghan wars, by adding hundreds of billions or trillions to the deficit, even as they claim that non-military programs are bankrupting the country.
Napoleon and Hitler were brought down when they foolishly fought wars on two fronts. In hindsight they look like strategic geniuses compared to the American hawks who, not content that the U.S. is fighting two simultaneous wars in the Muslim world, are recklessly proposing a third.
Fortunately, the American people in 2008 chose not to entrust Sen. McCain with the office of commander in chief. While his domestic policy has been too timid and incremental, in his foreign policy Barack Obama has proven to be the cautious realist that America needed after the trigger-happy George W. Bush. His prudence is shared by his conservative secretary of defense, Robert Gates, who recently told an audience of West Point cadets:
“In my opinion, any future defense secretary who advises the president to again send a big American land army into Asia or into the Middle East or Africa should ‘have his head examined,’ as General MacArthur so delicately put it.”
Gates is right. Those who propose U.S. military intervention in Libya, even as the U.S. remains bogged down in Iraq and Afghanistan, should get their heads examined.
By: Michael Lind, Salon, March 8, 2011
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