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Congressman Dennis Kucinich, Me, and The War Powers Resolution of 1973…

by on March 30, 2011

I’ve heard lots of conflicting claims made here about what the president did or didn’t do concerning Congress’ and the President’s prerogatives and responsibilities when it comes to sending US military forces into harm’s way.

I’ve seen many comments and a few diaries concerning Dennis Kucinich and his claim that Congress needs to be brought in when the White House and Pentagon deploys forces.

My view is that he has a valid point. History shows us that like the concept of humanitarian intervention, like the War Powers Resolution of 1973, is ripe for abuse, and has in fact been abused this way more often than not. Again, exactly in the same way that humanitarian concerns are cited in every public ramp up prior to going to war.

I’m not so eager to give the President the benefit of the doubt here. Politics should stop at the water’s edge and frankly, people’s lives are put at risk. Not only our own military personnel, but the lives of innocent Libyans. This is a time to stick to the facts as best we know them, revise our conclusions as new facts become known, and judge accordingly.

Regardless of my disappointments on the President’s performance and choices, I’m prepared to give him credit for helping save lives in Benghazi, and for going about it in the manner this administration accomplished this: giving the requirements of diplomacy and international law their just due.

However the constitution is silent on whether congress has the power to delegate it’s responsibilities as the WPR implies or whether the President’s authority over the armed forces and their deployments is absolute. The WPR was an attempt to define this more clearly, but as I will illustrate, is far from perfect.

Let’s begin with the resolution itself, included in its entirety for reference purposes. From a copy posted online at Avalon Project:

War Powers Resolution
Joint Resolution

Concerning the War Powers of Congress and the President.

Resolved by the Senate and the House of Representatives of the United States of America in Congress assembled,

SHORT TITLE

SECTION 1. This joint resolution may be cited as the “War Powers Resolution”.

PURPOSE AND POLICY

SEC. 2. (a) It is the purpose of this joint resolution to fulfill the intent of the framers of the Constitution of the United States and insure that the collective judgement of both the Congress and the President will apply to the introduction of United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, and to the continued use of such forces in hostilities or in such situations.

(b) Under article I, section 8, of the Constitution, it is specifically provided that the Congress shall have the power to make all laws necessary and proper for carrying into execution, not only its own powers but also all other powers vested by the Constitution in the Government of the United States, or in any department or officer thereof.

(c) 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.

CONSULTATION

SEC. 3. The President in every possible instance shall consult with Congress before introducing United States Armed Forces into hostilities or into situation where imminent involvement in hostilities is clearly indicated by the circumstances, and after every such introduction shall consult regularly with the Congress until United States Armed Forces are no longer engaged in hostilities or have been removed from such situations.

REPORTING

SEC. 4. (a) In the absence of a declaration of war, in any case in which United States Armed Forces are introduced–

(1) into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances;

(2) into the territory, airspace or waters of a foreign nation, while equipped for combat, except for deployments which relate solely to supply, replacement, repair, or training of such forces; or

(3) in numbers which substantially enlarge United States Armed Forces equipped for combat already located in a foreign nation; the president shall submit within 48 hours to the Speaker of the House of Representatives and to the President pro tempore of the Senate a report, in writing, setting forth–

(A) the circumstances necessitating the introduction of United States Armed Forces;

(B) the constitutional and legislative authority under which such introduction took place; and

(C) the estimated scope and duration of the hostilities or involvement.

(b) The President shall provide such other information as the Congress may request in the fulfillment of its constitutional responsibilities with respect to committing the Nation to war and to the use of United States Armed Forces abroad

(c) Whenever United States Armed Forces are introduced into hostilities or into any situation described in subsection (a) of this section, the President shall, so long as such armed forces continue to be engaged in such hostilities or situation, report to the Congress periodically on the status of such hostilities or situation as well as on the scope and duration of such hostilities or situation, but in no event shall he report to the Congress less often than once every six months.

CONGRESSIONAL ACTION

SEC. 5. (a) Each report submitted pursuant to section 4(a)(1) shall be transmitted to the Speaker of the House of Representatives and to the President pro tempore of the Senate on the same calendar day. Each report so transmitted shall be referred to the Committee on Foreign Affairs of the House of Representatives and to the Committee on Foreign Relations of the Senate for appropriate action. If, when the report is transmitted, the Congress has adjourned sine die or has adjourned for any period in excess of three calendar days, the Speaker of the House of Representatives and the President pro tempore of the Senate, if they deem it advisable (or if petitioned by at least 30 percent of the membership of their respective Houses) shall jointly request the President to convene Congress in order that it may consider the report and take appropriate action pursuant to this section.

(b) Within sixty calendar days after a report is submitted or is required to be submitted pursuant to section 4(a)(1), whichever is earlier, the President shall terminate any use of United States Armed Forces with respect to which such report was submitted (or required to be submitted), unless the Congress (1) has declared war or has enacted a specific authorization for such use of United States Armed Forces, (2) has extended by law such sixty-day period, or (3) is physically unable to meet as a result of an armed attack upon the United States. Such sixty-day period shall be extended for not more than an additional thirty days if the President determines and certifies to the Congress in writing that unavoidable military necessity respecting the safety of United States Armed Forces requires the continued use of such armed forces in the course of bringing about a prompt removal of such forces.

(c) Notwithstanding subsection (b), at any time that United States Armed Forces are engaged in hostilities outside the territory of the United States, its possessions and territories without a declaration of war or specific statutory authorization, such forces shall be removed by the President if the Congress so directs by concurrent resolution.

CONGRESSIONAL PRIORITY PROCEDURES FOR JOINT RESOLUTION OR BILL

SEC. 6. (a) Any joint resolution or bill introduced pursuant to section 5(b) at least thirty calendar days before the expiration of the sixty-day period specified in such section shall be referred to the Committee on Foreign Affairs of the House of Representatives or the Committee on Foreign Relations of the Senate, as the case may be, and such committee shall report one such joint resolution or bill, together with its recommendations, not later than twenty-four calendar days before the expiration of the sixty-day period specified in such section, unless such House shall otherwise determine by the yeas and nays.

(b) Any joint resolution or bill so reported shall become the pending business of the House in question (in the case of the Senate the time for debate shall be equally divided between the proponents and the opponents), and shall be voted on within three calendar days thereafter, unless such House shall otherwise determine by yeas and nays.

(c) Such a joint resolution or bill passed by one House shall be referred to the committee of the other House named in subsection (a) and shall be reported out not later than fourteen calendar days before the expiration of the sixty-day period specified in section 5(b). The joint resolution or bill so reported shall become the pending business of the House in question and shall be voted on within three calendar days after it has been reported, unless such House shall otherwise determine by yeas and nays.

(d) In the case of any disagreement between the two Houses of Congress with respect to a joint resolution or bill passed by both Houses, conferees shall be promptly appointed and the committee of conference shall make and file a report with respect to such resolution or bill not later than four calendar days before the expiration of the sixty-day period specified in section 5(b). In the event the conferees are unable to agree within 48 hours, they shall report back to their respective Houses in disagreement. Notwithstanding any rule in either House concerning the printing of conference reports in the Record or concerning any delay in the consideration of such reports, such report shall be acted on by both Houses not later than the expiration of such sixty-day period.

CONGRESSIONAL PRIORITY PROCEDURES FOR CONCURRENT RESOLUTION

SEC. 7. (a) Any concurrent resolution introduced pursuant to section 5(b) at least thirty calendar days before the expiration of the sixty-day period specified in such section shall be referred to the Committee on Foreign Affairs of the House of Representatives or the Committee on Foreign Relations of the Senate, as the case may be, and one such concurrent resolution shall be reported out by such committee together with its recommendations within fifteen calendar days, unless such House shall otherwise determine by the yeas and nays.

(b) Any concurrent resolution so reported shall become the pending business of the House in question (in the case of the Senate the time for debate shall be equally divided between the proponents and the opponents), and shall be voted on within three calendar days thereafter, unless such House shall otherwise determine by yeas and nays.

(c) Such a concurrent resolution passed by one House shall be referred to the committee of the other House named in subsection (a) and shall be reported out by such committee together with its recommendations within fifteen calendar days and shall thereupon become the pending business of such House and shall be voted on within three calendar days after it has been reported, unless such House shall otherwise determine by yeas and nays.

(d) In the case of any disagreement between the two Houses of Congress with respect to a concurrent resolution passed by both Houses, conferees shall be promptly appointed and the committee of conference shall make and file a report with respect to such concurrent resolution within six calendar days after the legislation is referred to the committee of conference. Notwithstanding any rule in either House concerning the printing of conference reports in the Record or concerning any delay in the consideration of such reports, such report shall be acted on by both Houses not later than six calendar days after the conference report is filed. In the event the conferees are unable to agree within 48 hours, they shall report back to their respective Houses in disagreement.

INTERPRETATION OF JOINT RESOLUTION

SEC. 8. (a) 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 the date of the enactment of this joint resolution), 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 stating that it is intended to constitute specific statutory authorization within the meaning of this joint resolution; 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 joint resolution.

(b) Nothing in this joint resolution shall be construed to require any further specific statutory authorization to permit members of United States Armed Forces to participate jointly with members of the armed forces of one or more foreign countries in the headquarters operations of high-level military commands which were established prior to the date of enactment of this joint resolution and pursuant to the United Nations Charter or any treaty ratified by the United States prior to such date.

(c) For purposes of this joint resolution, the term “introduction of United States Armed Forces” includes the assignment of member 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.

(d) Nothing in this joint resolution–

(1) is intended to alter the constitutional authority of the Congress or of the President, or the provision of existing treaties; or

(2) shall be construed as granting any authority to the President with respect to the introduction of United States Armed Forces into hostilities or into situations wherein involvement in hostilities is clearly indicated by the circumstances which authority he would not have had in the absence of this joint resolution.

SEPARABILITY CLAUSE

SEC. 9. If any provision of this joint resolution or the application thereof to any person or circumstance is held invalid, the remainder of the joint resolution and the application of such provision to any other person or circumstance shall not be affected thereby.

EFFECTIVE DATE

SEC. 10. This joint resolution shall take effect on the date of its enactment.

CARL ALBERT
Speaker of the House of Representatives.

JAMES O. EASTLAND
President of the Senate pro tempore.
IN THE HOUSE OF REPRESENTATIVES, U.S.,

November 7, 1973.

The House of Representatives having proceeded to reconsider the resolution (H. J. Res 542) entitled “Joint resolution concerning the war powers of Congress and the President”, returned by the President of the United States with his objections, to the House of Representatives, in which it originated, it was

Resolved, That the said resolution pass, two-thirds of the House of Representatives agreeing to pass the same.

Attest:
W. PAT JENNINGS
Clerk.
I certify that this Joint Resolution originated in the House of Representatives.

W. PAT JENNINGS
Clerk.
IN THE SENATE OF THE UNITED STATES

November 7, 1973

The Senate having proceeded to reconsider the joint resolution (H. J. Res. 542) entitled “Joint resolution concerning the war powers of Congress and the President”, returned by the President of the United States with his objections to the House of Representatives, in which it originate, it was

Resolved, That the said joint resolution pass, two-thirds of the Senators present having voted in the affirmative.

Attest:
FRANCIS R. VALEO
Secretary.

As for Congressman Kucinich, it seems that the point he makes in his diary is actually a requirement of the WPR. I refer you to Section 3 above, titled “Consultation”

SEC. 3. The President in every possible instance shall consult with Congress before introducing United States Armed Forces into hostilities or into situation where imminent involvement in hostilities is clearly indicated by the circumstances, and after every such introduction shall consult regularly with the Congress until United States Armed Forces are no longer engaged in hostilities or have been removed from such situations.

(Emphasis mine)

In my view, the congressman has a point. If the planning for this began a month before the opening coalition strike (by the French, on 19 March), then Congress should have been consulted as the resolution requires. It may have been required even earlier, because the USS Kearsarge, an amphibious assault ship, was moved from its station near the Strait of Hormuz through the Suez Canal to Crete to pick up Marines flown in from Camp Lejeune and moved to the waters off Libya first reported on 3 March. It could very well be that the reporting requirement was triggered then under Section 4(a)(1) and (2). The White House would then have 48 hours to report to Congress. The decision to send the Kearsarge, not its arrival off Libya, starts the clock. It took several days for the Kearsarge to transit the canal, pick up Marines (which happened on or before 5 March), and reach its present station. Section 4(a)(1) seems fairly clear.

But not entirely. Congress is perfectly happy not to direct military actions, and I’m in agreement on this. One thing Congress specifically allows at any time and without reporting are some deployments, temporary in their nature, such as civilian and embassy evacuations. This was done in 1974 (Cyprus) and in 1976 (Lebanon). This is important because the administration characterized the deployment of the Kearsarge as:

base spokesman Paul Farley said . . . they had been deployed “as part of contingency planning to provide the president (Barack Obama) flexibility on full range of option regarding Libya,” along with the amphibious assault ships USS Kearsarge and USS Ponce which have been ordered to Mediterranean.

(USA Today)

and

“I have directed several Navy ships to the Mediterranean,” Gates said in response to a question during a Pentagon briefing. “The USS Kearsarge and the [USS] Ponce will be entering the Mediterranean shortly and will provide us a capability for both emergency evacuations and also for humanitarian relief.”

(Xinhua, 1 March, and The Hill, 3 March)

Was this an honest assessment? That remains to be seen. Were these deployments made with the caveat that the debate within the administration was as yet undecided and the actual use of force depended on this? Politically, that might work, but legally, it probably does not relieve the administration from reporting to Congress under Section 4(a)(1) and consulting with Congress under Section 3.

At least one report seems to indicate that statements about forces being sent into the region to evacuate US nationals and embassy personnel are false. It seems the buildup was much greater than reported:

HERAKLION, Greece, March 3 (Xinhua) — The United States and its Western allies are boosting their naval presence near unrest-stricken Libya, albeit audible caution and opposition against military intervention.

U.S. and NATO naval facilities in Souda Bay of the Greek island of Crete have been put on alert, according to reports from Greek channel Nea TV and other media outlets on Wednesday.

U.S. amphibious assault ships USS Kearsarge and USS Ponce have entered the Mediterranean Sea and are due to arrive at the bay on Friday, said the reports, which could not be immediately verified.

A U.S. submarine and a U.S. torpedo destroyer are also expected in the area on Sunday, to be followed by two other U.S. warships on March 15, according to local media.

These unconfirmed reports also said that two U.S. aircraft carriers have already been present on waters south of Crete. Other news sources said that the United States had an aircraft carrier in the Red Sea, but has not revealed whether to deploy it to the Mediterranean Sea.

In addition, three U.S. transport vessels have requested permission from Greek authorities to sail to Crete to support Washington’s Libya evacuation efforts, local media reported.

Meanwhile, Canada, Britain and France, among other countries, have also despatched warships to the Mediterranean Sea for the declared purposes of assisting the exodus of foreign nationals from Libya and providing humanitarian aid.

(Xinhua N.B.: I’m not prepared to accept Xinhua’s story at face value, but this is what I do know. The Kearsarge, the Ponce, at least one missile frigate and one US missile submarine as well as one British submarine were in the area the night of 19 March, when coalition strikes began. That’s a significant force in itself, and I see no reason for submarines armed with Tomahawk missiles to participate in a mission merely to evacuate US nationals.)

A short chronology is also pertinent in discussions of WPR requirements:

  • Around 14 March, EU High Commissioner for Foreign Relations and Security Policy Catherine Ashton left a NATO summit in Budapest for Cairo to speak with the Arab League.
  • On 16 March, the Arab League announced its support of a no-fly zone.
  • 17 March. Undersecretary of State William Burns testifies in a Senate Foreign Relations Committee hearing (under interrogation by an openly skeptical and decidedly rude Marco Rubio) that he expected a UNSC resolution to pass in spite of Russia and China’s objections. He expected it that night.
  • Indeed, the UN Security Council passed S/res/1973 (2011) that evening, as predicted.
  • 18 March: Gadhafi announces his cease-fire, but fighting continues.
  • In the early morning hours of 19 March, French attacks obliterate Gadhafi’s mechanized units on the outskirts of Benghazi, and later that day, US and British naval forces launch over 100 cruise missiles on Gadhafi integrated air defense units.

    N.B.: They had already identified over 100 targets and what was necessary to take them out.

  • 21 March: The President finally transmits his letter to the Speaker and the President pro tempore (Daniel Inouye)

So when the President said in his speech the other night:

“To summarize, then: in just one month, the United States has worked with our international partners to mobilize a broad coalition, secure an international mandate to protect civilians, stop an advancing army, prevent a massacre, and establish a No Fly Zone with our allies and partners.”

I’m inclined to view this as an accurate statement, based on the timeline. I deliberately haven’t included in this diary remarks by the President or Secretary of State or anyone else in a position to know because their statements are confusing and contradictory: we’re there to fulfill the UNSC resolution to protect citizens; we’re there to help the rebels oust Gadhafi. Nothing definitive on what US intentions are, and we’re not alone. Just in the past few days, the British foreign office said that Gadhafi must go and when asked, a British officer said that ousting Gadhafi is definitely not an aim of the coalition. Whether the tiger-women of the Obama administration managed to change the President’s mind and change the course of US policy is another topic entirely, and quite frankly, I have trouble believing this. The sequence of events suggests, using the most charitable interpretation, that US involvement conditioned on the Arab League’s approval, but the intention was always there to intervene. Someday soon, I suppose, Bob Woodward will write a book answering this question. Here, however, I want to focus on the War Powers Resolution of 1973, and whether the administration has met it’s provisions.

As I said before, whether the WPR has even been invoked is in question. Reports to Congress on the deployment of forces have been made to Congress and whether these reports are enough to trigger provisions of the WPR.

First of all, the report to Congress was made and here’s the text from the White House website:

The White House

Office of the Press Secretary

For Immediate Release March 21, 2011
Letter from the President regarding the commencement of operations in Libya

TEXT OF A LETTER FROM THE PRESIDENT TO THE SPEAKER OF THE HOUSE OF REPRESENTATIVES AND THE PRESIDENT PRO TEMPORE OF THE SENATE

March 21, 2011

Dear Mr. Speaker: (Dear Mr. President:)

At approximately 3:00 p.m. Eastern Daylight Time, on March 19, 2011, at my direction, U.S. military forces commenced operations to assist an international effort authorized by the United Nations (U.N.) Security Council and undertaken with the support of European allies and Arab partners, to prevent a humanitarian catastrophe and address the threat posed to international peace and security by the crisis in Libya. As part of the multilateral response authorized under U.N. Security Council Resolution 1973, U.S. military forces, under the command of Commander, U.S. Africa Command, began a series of strikes against air defense systems and military airfields for the purposes of preparing a no-fly zone. These strikes will be limited in their nature, duration, and scope. Their purpose is to support an international coalition as it takes all necessary measures to enforce the terms of U.N. Security Council Resolution 1973. These limited U.S. actions will set the stage for further action by other coalition partners.

United Nations Security Council Resolution 1973 authorized Member States, under Chapter VII of the U.N. Charter, to take all necessary measures to protect civilians and civilian populated areas under threat of attack in Libya, including the establishment and enforcement of a “no-fly zone” in the airspace of Libya. United States military efforts are discrete and focused on employing unique U.S. military capabilities to set the conditions for our European allies and Arab partners to carry out the measures authorized by the U.N. Security Council Resolution.

Muammar Qadhafi was provided a very clear message that a cease-fire must be implemented immediately. The international community made clear that all attacks against civilians had to stop; Qadhafi had to stop his forces from advancing on Benghazi; pull them back from Ajdabiya, Misrata, and Zawiya; and establish water, electricity, and gas supplies to all areas. Finally, humanitarian assistance had to be allowed to reach the people of Libya.

Although Qadhafi’s Foreign Minister announced an immediate cease-fire, Qadhafi and his forces made no attempt to implement such a cease-fire, and instead continued attacks on Misrata and advanced on Benghazi. Qadhafi’s continued attacks and threats against civilians and civilian populated areas are of grave concern to neighboring Arab nations and, as expressly stated in U.N. Security Council Resolution 1973, constitute a threat to the region and to international peace and security. His illegitimate use of force not only is causing the deaths of substantial numbers of civilians among his own people, but also is forcing many others to flee to neighboring countries, thereby destabilizing the peace and security of the region. Left unaddressed, the growing instability in Libya could ignite wider instability in the Middle East, with dangerous consequences to the national security interests of the United States. Qadhafi’s defiance of the Arab League, as well as the broader international community moreover, represents a lawless challenge to the authority of the Security Council and its efforts to preserve stability in the region. Qadhafi has forfeited his responsibility to protect his own citizens and created a serious need for immediate humanitarian assistance and protection, with any delay only putting more civilians at risk.

The United States has not deployed ground forces into Libya. United States forces are conducting a limited and well-defined mission in support of international efforts to protect civilians and prevent a humanitarian disaster. Accordingly, U.S. forces have targeted the Qadhafi regime’s air defense systems, command and control structures, and other capabilities of Qadhafi’s armed forces used to attack civilians and civilian populated areas. We will seek a rapid, but responsible, transition of operations to coalition, regional, or international organizations that are postured to continue activities as may be necessary to realize the objectives of U.N. Security Council Resolutions 1970 and 1973.

For these purposes, I have directed these actions, which are in the national security and foreign policy interests of the United States, pursuant to my constitutional authority to conduct U.S. foreign relations and as Commander in Chief and Chief Executive.

I am providing this report as part of my efforts to keep the Congress fully informed, consistent with the War Powers Resolution. I appreciate the support of the Congress in this action.

BARACK OBAMA

Does this meet the requirements of the WPR? Let’s revisit Section 4:

REPORTING

SEC. 4. (a) In the absence of a declaration of war, in any case in which United States Armed Forces are introduced–

(1) into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances;

(2) into the territory, airspace or waters of a foreign nation, while equipped for combat, except for deployments which relate solely to supply, replacement, repair, or training of such forces; or

(3) in numbers which substantially enlarge United States Armed Forces equipped for combat already located in a foreign nation; the president shall submit within 48 hours to the Speaker of the House of Representatives and to the President pro tempore of the Senate a report, in writing, setting forth–

(A) the circumstances necessitating the introduction of United States Armed Forces;

(B) the constitutional and legislative authority under which such introduction took place; and

(C) the estimated scope and duration of the hostilities or involvement.

(b) The President shall provide such other information as the Congress may request in the fulfillment of its constitutional responsibilities with respect to committing the Nation to war and to the use of United States Armed Forces abroad

(c) Whenever United States Armed Forces are introduced into hostilities or into any situation described in subsection (a) of this section, the President shall, so long as such armed forces continue to be engaged in such hostilities or situation, report to the Congress periodically on the status of such hostilities or situation as well as on the scope and duration of such hostilities or situation, but in no event shall he report to the Congress less often than once every six months.

We read in the President’s statement that US policy is dictated by S/res/1973 (2011), that it is necessitated by humanitarian concerns, and that it’s scope is limited (no ground troops, for instance). We read nothing about its duration, a requirement of the WPR and one that is controversial. It is the sense of Congress that such timetables are arbitrary and may in fact, insure a bad outcome. All the enemy has to do is survive 60 or 90 days. Also lacking is a clear definition of its scope in other measures, our “unique capabilities.” Presumably, the coalition will rely on US national technical means (satellite imagery), will be able to count on logistical support, as well as search and rescue (the only confirmed civilian casualties were caused by a US SAR team and inflicted on friendlies, btw). And while the French get to showcase the Dassault Rafale, they can count on resupply, such as POL, arms, and well, perhaps money is a contribution we can regard as “unique” as well. But not ground troops, and the insistence that ground forces will not be deployed in Libya came early and often, and there could very well be a legal reason for this.

It is just one of the aspects of how the administration has operated throughout all this which leads me to believe that these choices have been made specifically to avoid triggering a 60/90 day deadline.

The President’s letter to congress does not, in fact, cite Section 4 of the WPR at all, nor cite any of the reasons that Section 4 specifies as triggering the reporting measure, or the time limit provisions. This has happened before, and has been used successfully to avoid triggering the timeline provisions of the WPR. The issues are not all that clear:

  • On Timely Consultation: The Danang Sealift, the evacuation of Phnom Penh, the evacuation of Saigon and the retaking of the SS Mayaguez, all taken by President Ford and reported on under WPR, but nonetheless without consultation. It was pretty much agreed then that the President had acted in violation of the WPR.
  • On the Necessity or Possibility of Consultation: After the unsuccessful attempt to rescue the Iran hostages, President Carter reported to Congress, citing that the action was a “rescue” and not an act of force or agression directed against Iran.
  • On Military Advisers: the Reagan administration never reported to Congress under the WPR, because it claimed that the forces sent to El Salvador were only advisors there on a training mission and armed only with personal sidearms for their protection. This one was brought to court and was kicked out. The plaintiffs claimed that US forces were being sent into a theater where hostilities were imminent or ongoing and that a report was required. The court kicked it back to Congress saying that it wasn’t up to the court to determine if a situation outside of its jurisdiction could be characterized as hostile, and that Congress had ample time to make that finding on its own behalf and deal with it by any other legal means they could agree upon. They followed this advice and passed the Boland Amendment
  • All Armed Deployments Are Not Equal: In 1983, the Pentagon under Reagan began joint military exercises with Central American and the Caribbean forces in and off the coast of Honduras. The first deployment of ground troops began when troops landed in Honduras on August 8, and both naval and air forces were included in the “joint training exercise.” Which lasted several years. Training exercises are specifically exempted from WPR reporting, under Section 4(a)(2).
  • Can Congress Compel WPR Compliance? Regarding the deployment of US ground tropps in the multinational force in Lebanon in 1972,
    “President Reagan filed three reports under the War Powers Resolution, but he did not report under section 4(a)(1) that the forces were being introduced into hostilities or imminent hostilities, thus triggering the 60-90 day time limit.

    (Emphasis mine)

    (CRS R4119: The War Powers Resolution After Thirty-Six Years)

There’s much more in that CRS report, which I’ve relied on heavily for this diary. It’s a fantastic piece of work describing the workings and malfunctions of the WPR, and I urge everyone to read it. Right now, I want to point to that final instance of WPR reporting I cite here. Because Section 4(a)(1) was not cited in the report to Congress, the 60/90 day time limit on the deployment was never triggered, and in the President’s letter to the Speaker and President Pro Tempore, we see no similar citation. I feel that it’s likely that this is a deliberate attempt to avoid triggering the time limit. I feel the assurances that no ground troops (how about contractors?) will be deployed on Libyan soil is likewise aimed at giving the President as much flexibility as possible without triggering a congressional backlash. The administration hopes that this war will be a “standoff” war, so they can justly claim that US forces are (probably) not in harms way. Or are they?

And what of potential attacks on soft targets elsewhere? Terrorist attacks, in other words, in retaliation for coalition actions?

Lots of us here are happy that Benghazi was spared. I’m as certain as anyone that Gadhafi’s forces would have perpetrated mass atrocities there, perhaps amounting to crimes against humanity. (What the difference is isn’t all that clear—except the politics of the accused versus those of the victors. Those are crystal clear.) Gadhafi erred in his calculation that the West would not seek his removal, perhaps because his oil shielded him somehow. I don’t know. But what I do know is that every president since 1973 has sought to escape the provisions required of them by the WPR, and my feeling is that this one is too.

Dennis Kucinich may be overstating his case. He may not be framing it properly, but that doesn’t mean the issues he is raising aren’t valid. They are. And I think every one of us needs to cede him this point.

We’ve gone to war. I don’t believe this administration has a good grip on what will get us out of it—they’re talking openly now of arming the rebels, as if that was ever a solution. Even armed, it’s a dicey proposition that the rebels can, alone, accomplish the coalition’s real, unofficial goal: ousting Gadhafi. What comes after that “victory” is also an open question, and I don’t mean whether they’ll be friendly to the US, that is always up to them regardless, but whether they won’t take up killing each other to fill the power vacuum that Gadhafi’s removal would create.

That would be heartbreaking.

And I do feel that not only has this administration waged war on Gadhafi, but the signs are that it has quietly declared war on Congress as well. I have no great love for nor faith in Congress, after the last three years, none of us should. The republicans are really as thuggish as everyone here claims, and it becomes clearer everyday that we’ve been right (again) about this all along. And the congressional democrats lack all conviction.

Except for one.

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