Legality of Libyan Actions Challenged by US Lawmakers

[Cutlass]

But has the US already ceded to the UN's decision simply by signing up to it 60 odd years ago (remembering that they are free to withdraw), or is there still a need for full approval in each individual instance?

The signatory nations did, at most, a partial ceding of sovereignty. That is, any particular instance of ceding of sovereignty is voluntary. Each nation can still say "We will, or will not, abide by that decision". And the most the UN can do in response is to try to convince the other nations to levy some form of sanctions to the non-complying nation. The UN can compel nothing. Not against the strong nations, in any case.

 

[Patroklos]

That said, I don't think the US government has abided by the Constitution on the issue since the start of the Korean War. And I think there may well have been plenty of times before that as well when the Constitution wasn't really followed formally when the military was used. There hasn't been a decade since the 1830s when the US Marines didn't see combat, for instance. And there's only been a handful of actual formal wars in all those years.

I think you have a lot of unattested claims to account for. For one, the WPA is from the 70s, and you would be hard pressed to find military interventions over 90 days that were not Congressionally approved. Places like Lebenon, Grenada and Panama fall within the letter of the law because of either the time frame involved or Congressional approval being given.

The situation is that the precedent of 180 years, at least, is at odds with the letter of the Constitution. This is not new.

Not really, and I challenge you to back this up. All intervenions of the last twenty years at lease fall within the letter of the WPA and Constitution. Iraq, Afghanista, Somolia, Yemen, Sudan, Iraq I, Kosovo, Grenada, Iran, Panama are all examples contrary to your position crossing several presidencies of different parties.

So the Constitution is not on Obama's side. But near 2 centuries of precedent is.

Again, unattested.

The rest, it may be bipartisan, but really in name only. 80% of this is partisan politics. And there is no escaping that.

Thats a nice number, care to support it?

 

[MagisterCultuum]

The UN has nothing to do with the legality of a war. Legally speaking there is absolutely no reason to consult the UN. For most of US history all a legal war required was a formal declaration by the US Congress. Since the US Senate ratified the Kellogg-Briand Pact in 1928 (and have never formally taken action to repeal it) it has also been illegal to use war as an instrument of foreign policy, with the reservation that this cannot interfere with our right to self defense or compel us to take action against other parties who violate the treaty.

 

[Camikaze]

The signatory nations did, at most, a partial ceding of sovereignty. That is, any particular instance of ceding of sovereignty is voluntary. Each nation can still say "We will, or will not, abide by that decision". And the most the UN can do in response is to try to convince the other nations to levy some form of sanctions to the non-complying nation. The UN can compel nothing. Not against the strong nations, in any case.

Yeah, I know that, but my question isn't whether the US is compelled to act, but whether UN approval provides any additional domestic legitimacy. Whether or not congressional approval is necessitated on a UN approved action, as opposed to an internationally unilateral action. I'm certainly assuming not, but as the US domestically recognises the UN, and the UN allows for action in this case, perhaps something is mitigated.

 

[Cutlass]

Yeah, I know that, but my question isn't whether the US is compelled to act, but whether UN approval provides any additional domestic legitimacy. Whether or not congressional approval is necessitated on a UN approved action, as opposed to an internationally unilateral action. I'm certainly assuming not, but as the US domestically recognises the UN, and the UN allows for action in this case, perhaps something is mitigated.

The US public doesn't have high respect for the UN. If the UN agrees with what someone wants, they'll use it as an excuse. If the UN doesn't agree with what they want, the UN is some anti-American commie organization that is an insult to American sovereignty. If there is any number of Americans who would let the UN change their minds, they aren't statistically or politically significant.

 

[illram]

Yeah, I know that, but my question isn't whether the US is compelled to act, but whether UN approval provides any additional domestic legitimacy. Whether or not congressional approval is necessitated on a UN approved action, as opposed to an internationally unilateral action. I'm certainly assuming not, but as the US domestically recognises the UN, and the UN allows for action in this case, perhaps something is mitigated.

Good question! The War Powers Act seems to say no. I have seen conservative pundits, such as this guy, argue that section 1547 specifically states that UN resolutions or participation in NATO operations do not provide the President an "out."

This section for example does not help Obama:

§ 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.

[...]
(c) Introduction of United States Armed Forces
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.

I am no expert on interpretations of UN Charter and I have not read it in quite some time. The fun part is Chapter 7. It is sort of vague as to whether these articles constitute "specific statutory authorization within the meaning of this chapter," and one would have to look at Congress' ratification to really make that assessment. I did not see this argument anywhere in Obama's report to Congress, however, and I would assume that Cutlass is in a way correct that the political climate would not take kindly to a President arguing that he can do something like this because the UN says he can. (Not technically the argument but in the 5 second soundbite media climate that is what it would boil down to.)

 

[woody60707]

I think everyone has played fast and loose with the WPA as long as it's been on the books. And I don't see that ending.

"Well if everyone else is doing it" was an argument I last used when I was 7 yrs old.

 

[Cutlass]

"Well if everyone else is doing it" was an argument I last used when I was 7 yrs old.

I'm not saying it's right. Just that it's common. And so the whole situation should be looked at differently.

 

[woody60707]

I'm not saying it's right. Just that it's common. And so the whole situation should be looked at differently.

Oh, I wasn't disagreeing with you sir.

I was saying that the President and Congress are a bunch of 7 yr olds.

 

[Millman]

It sounds like all govs and peoples are trying to manipulate the law. Why limit the discussion to only the gov. when everyone had to break it at some point.

Now if you want to admit anything and exactly how it happened. Everyone would be disposed. Is that the right word?

Another point to consider is that power is limited. Not even your gov. or you know everything. I bet people will die this year from natural and artificial causes.

 

[Moss]

http://www.nytimes.com/2011/06/18/world/africa/18powers.html?pagewanted=1&_r=1&hp

The Office of Legal Counsel (and others in the Administration) disagreed with Obama's ultimate decision:

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.

A sticking point for some skeptics was whether any mission that included firing missiles from drone aircraft could be portrayed as not amounting to hostilities.

As the May 20 deadline approached, Mr. Johnson advocated stopping the drone strikes as a way to bolster the view that the remaining activities in support of NATO allies were not subject to the deadline, officials said. But Mr. Obama ultimately decided that there was no legal requirement to change anything about the military mission.

 

[Rashiminos]

There are various pieces of equipment that fall outside the kinetic restriction.

 

[JollyRoger]

Why is Congress enriching trial lawyers and shopping for activist judges? They are a branch of government that should do the job they have been voted in for rather than diverting the responibility to the branch with no war powers under the Constitution.

 

[FriendlyFire]

For all the talk of Iraq being an illegal war, Bush did in fact get approval from Congress for both Iraq and Afghanistan the lack of which being the only legal way to consider either illegal wars. Obama is being the ultimate hypocrite here.

Legal, Just, popular, in the end what really matters is "might is right"
EDIT: and oil lets not forget the oil

 

[Ayatollah So]

Do you think it usurps the President's role as Commander in Chief?

Dunno, but the War Powers Act definitely usurps the power of Congress to declare wars and letters of marque and reprisal. Which cannot be done by legislation: if Congress wants to voluntarily surrender its powers, it needs a Constitutional amendment to do so.

The UN has nothing to do with the legality of a war. Legally speaking there is absolutely no reason to consult the UN. For most of US history all a legal war required was a formal declaration by the US Congress. Since the US Senate ratified the Kellogg-Briand Pact in 1928 (and have never formally taken action to repeal it) it has also been illegal to use war as an instrument of foreign policy, with the reservation that this cannot interfere with our right to self defense or compel us to take action against other parties who violate the treaty.

This. And, nice touch with the Kellogg-Briand pact.

Hey Tea Party! Where's your Constitution now? We've got, what, 5 Tea Party caucus members signing on to this, and the other 55 sitting on their hands. Wow, I knew they were hypocrites about the Constitution, but I figured that if a Democrat is abusing it... Even Obama can't abuse this part of the Constitution too much for these guys.

 

[Berzerker]

A Vietnam War-era law states Congress must authorise participation in hostilities longer than 60 days.

before or after the 60 days?

what does the Constitution say?

it sure as hell doesn't say Congress can let the Prez decide if we go to war

the Constitution is dead, the oath of office is a fraud

 

[illram]

Dunno, but the War Powers Act definitely usurps the power of Congress to declare wars and letters of marque and reprisal. Which cannot be done by legislation: if Congress wants to voluntarily surrender its powers, it needs a Constitutional amendment to do so.

This is of course a perfectly valid position to take. However, I doubt it is one any President will ever be arguing!

before or after the 60 days?

what does the Constitution say?

it sure as hell doesn't say Congress can let the Prez decide if we go to war

the Constitution is dead, the oath of office is a fraud

If the "hostilities" last longer than 60 days, the President can either seek a 30 day extension, seek congressional approval before the 60th day, or end the hostilities.

Many Presidents have tested the limits of their powers over the armed forces. Remember the War Powers Act was done in response to Vietnam. This Wiki entry is actually kind of interesting in terms of all our military engagements and their various Congressional authorizations (or lack thereof, in some cases).

This has been an issue since the Nation's founding. I think the modern reality is that Presidents faced with a desire for military action will act on them if politically expedient and then, once begun, seek funding. It's backdoor approval and fits nicely with the trend to dress military action in humanitarian or international law enforcement trappings. These conflicts are not conducive to declarations against one enemy and/or identifying fixed beginnings and endings. Congress will usually play along since many in Congress--even if not enough to get approval--probably either agree with the action anyway, can't muster the political capital to deny funding (what, do you not support the troops Congressman? *gasp*) or perhaps more importantly, they can blame the President when it all goes wrong, but accept the praise if it all goes right.