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Friday, May 20, 2011

To Nato we sail, across a wide sea, to thank Nato's leaders (but kill not Kadafi!)

After reading Jake Tapper's report (h/t Instapundit) of the Obama Adminstration's position on its compliance (or non-) with the War Powers Resolution with respect to the kinetic non-war in Libya — as announced today in a late-Friday-afternoon news-dump — I should very much like to know:

Exactly where is this nation called "Nato"? Because I would like to visit its leaders to thank them for taking over the responsibility for leading this coalition. Do the Natonians permit Americans to visit?

I don't think the War Powers Resolution is constitutional. But as a legal argument, if Tapper's summary is correct and the quotes he includes are accurate and in context, then this attempted side-step by Obama is beyond pathetic, to the point of being insulting.

I'm looking for a link to the letter itself, and might have more to say after reading it in full.


UPDATE (Fri May 20 @ 10:55pm): What Tapper describes sounds like a variation on an ancient legal doctrine: "De minimis non curat lex," meaning "the law does not concern itself with trifles." I don't know exactly what U.S. forces are still involved, but they are concededly significant enough to include ships and helos for "search and rescue operations," "aircraft that have assisted in the suppression and destruction of air defenses," and "unmanned aerial vehicles."

In other words, those assets all by themselves exceed the projectable military capabilities of almost every other nation on earth. De minimis, uh-huh. So I want to see the letter in full-text, to see if anyone from the Administration had the temerity to use that little bit of Latin to describe our non-war war.


UPDATE (Sat May 21 @ 12:55am): Mm-kay, here's the letter. It mentions the War Powers Resolution not at all by name, and references it only indirectly (and that with plausible deniability) in the language about "our on-going consultations." That doesn't matter; the timing makes self-evident that this is intended to address those issues. Friday was the 60th day after Obama triggered the Resolution by "introducing United States Armed Forces into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances." Since Congress hasn't given its blessing, Friday therefore was the day under 50 U.S.C. § 1544(b) by which Obama had to "terminate any [such] use of United States Armed Forces."

But to call this a "legal argument" would be far too generous. To call it a "credible excuse" would be a fantasy. This letter is worse than "the dog ate my homework." My paraphrase:

We've sorta kinda un-introduced those armed forces, mostly, because, see, they aren't really as involved, y'know? I mean they're still armed and everything. But you know, they're not, umm, leading or anything like they were at first. Follow? And okay, so "armed" yes, but "forces"? They aren't trying to be very forceful. We've talked about that. We've cut way back on that. Way back. Really. Back. Not very forceful, even though armed, yes. I mean, they could be forceful if I told them to — you saw what I did with those SEALs, yeah? you see that? — but seriously, I've told them: Not very forceful. Mostly not.

Yeah, I thought you'd agree, and, umm, so never mind that the Resolution says by Friday the president "shall terminate any use of United States Armed Forces," because you see, these really aren't any-any forces to speak of, you know — kinda like Roman Polanski didn't really commit rape-rape? It's just some planes and some ships and some junk, really, and — What? Well, yeah, there are some helicopters too, but most of the time they just stay on the boat and the pilots are down having chow and standing by. They have good chow on those Navy boats, I see to that, but that does not mean we're at war in Libya. That's a false choice, between good chow and war. Let me be clear about that.

And you know, that word "shall," that word sometimes really means "maybe." Like if I say to you, I go, "Shall we go to the park?" And then, like, you go, "Naw, I dun wanna." Then that's totally okay and we don't have to go! So it's really like, okay, well, "maybe" we should have terminated by now. Maybe. May. Be. And you know they really are "terminated," kinda — well not "them" but the missions, I mean. Mostly anyway. Unless like a plane crashes or we need to blow up some SAM sites and stuff. I can't control that. You know I can't control that, 'cause I did not put those SAM sites there.

Mostly we just talk on the phone and the radio a lot, really, and we wave at the British and the French and we go, like, "Hey dudes from Natonia, thumb's up dudes!" Seriously! I swear! Then they go blow stuff up and we go, like, "Yay! WTG dogs!" And they go, like, "Yeah! We're from Natonia, and we baaaad."

Oh, but hey, while we're talking about this, um, would you, like, sign this permission slip anyway for me? 'Cause I mean, it's no biggy, but like, I would really just want it for, like, y'know ... back-up? If there were ever some kind of impeachment thingy? Mm'kay, thx, bye!

Yes, Obama is now urging Congress to go ahead and give him permission for this not-war that the War Powers Resolution — if there is one, which we're not quite admitting there might be, but just, if there were, y'know, and if it were constitutional, which we're not denying or admitting today since we're not admitting that one exists — otherwise made illegal effective at the end of Friday.

President Gutsy!


UPDATE (Sat May 21 @ 1:55pm): I'm reprinting here (without block-quoting it) a comment I left on Patterico's blog on a post by his contributor Aaron Worthing, who's been following the whole War Powers issue diligently and thoughtfully (although I respectfully disagree with Aaron's ultimate conclusions in some important respects that aren't pertinent today):

The War Powers Resolution can be complied with even without ever saying its name. Obama’s letter from yesterday afternoon, for example, nowhere references 50 U.S.C. §§ 1541-1548, but it’s no coincidence that the letter was sent on the same day that section 1544(b)’s 60-day period expired. I believe that in this respect, that letter is fairly typical of what previous administrations have done while attempting to comply without admitting or implying any need to comply.

Obama’s March 21 letter to Congress did include a specific reference to the Resolution at its very end, but linked to an assertion of presidential authority:

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.

“Consistent with” is a carefully chosen qualifier, intended to acknowledge the Resolution without implying or conceding its binding authority. I have no particular fault to find with that, and prefer its honesty to the kabuki show of pretending the Resolution isn’t on the books.

Yesterday’s letter, though, isn’t actually even in compliance with anything in the Resolution. Rather, it’s a pathetic argument that might excuse non-compliance, and it includes (finally) a plea for Congress to give retroactive blessing.

In general, I’m content for the constitutionality of the Resolution to remain a matter of dispute, of continuing to-and-fro, push and push-back, between congressional and administrative branches without involving the judiciary. There are very good reasons why this hasn’t been litigated, and indeed, the whole system of checks and balances depends (counter-intuitively but undeniably) on some of its vague presumptions that never get tested. (To paraphrase Stalin’s comment about the Pope, “How many divisions does the Supreme Court command?”)

Obama could have mounted a serious, sustained, but quiet effort through bipartisan proxies in Congress to get a resolution passed that would bless what’s been done so far well before the 60-day deadline expired. He’s only doing that just now. Friends and neighbors, that delay is legal malpractice on behalf of those advising and representing the Executive. It may not turn out to be consequential malpractice — Obama may still get his retroactive blessing, which would moot the controversy as a practical matter — but it’s stumbling into a constitutional showdown, one that presents a relatively bad set of facts (from the Executive’s point of view) from which to establish a binding, precedential resolution of the Resolution’s constitutionality. And it’s inexcusable because the Administration damn well knew in March that this wasn’t going to be done by May 20.


UPDATE (Sat May 21 @ 7:15pm): I don't want to get into a protracted discussion on this post (or in its comments) about the constitutionality of the War Powers Resolution. However, the expiration of this deadline is essentially certain to cause someone, somewhere, to jump into federal court asking for an injunction.

I am 100% certain that when that happens, there will be very technical, very tedious, and very fundamental preliminary motions. There will be challenges to standing — the right to bring suit by a particular person or entity, and/or the capacity in which that's being done. There will be challenges as to ripeness — whether this is something that has to be decided now at all, much less on an emergency injunction basis. And most of all, there will be challenges to justiciability — whether this is even the kind of dispute that the federal courts are in business to be deciding, and in particular whether this is the sort of "political question" that the federal courts are supposed to refuse to get involved in.

So as you're imagining the whole range of potential scenarios that could unfold from this — to the continuing chagrin of Barack Obama, progressive superhero who's now committed a set of unforced, imbecilic, spectacularly ironic mistakes on Libya — consider this one, because it might well happen:

Congress: Hey SCOTUS, make him stop it! Make him follow the law we passed to tell him how to do his Commander-in-Chief gig! Order those ships to come home and those planes to stop flying right now!

POTUS: No, no, SCOTUS, that's my gig alone, and neither you nor Congress can tell me how to do it.

SCOTUS: We're just not going to talk about this subject. Go away.

[Courthouse door slams closed; POTUS and Congress trudge away, grumbling and snarling at one another. Exeunt all.]

I actually think that's the single most likely scenario, if it were pressed that far by the appropriate principals — who themselves may be precisely the ones who refuse to seek judicial involvement, because Congress has an interest in leaving this entirely unresolved, too.


UPDATE (Sun May 22 @ 8:15pm): I'm flattered that this post has been linked by both Instapundit and Ace, among others (and I'm no less grateful for links from blogs that lack the traffic of those two). Ace is wrong in guessing that my concerns about the constitutionality of the Resolution are limited to "overbreadth" arguments, but again, I really don't want to hash out that question in this post. It's a subject that's been debated, without closure, for literally my entire adult life — and I'm 53. (In assuming that the Resolution gives the POTUS 60 days plus an additional 30 days, I believe, for reasons I've explained in comments on Patterico's blog here and here, that Ace has simply misread the Resolution.)

However, it's worth mentioning that the Obama Administration's emphasis on the involvement of NATO allies in some sort of leadership role, and on the U.N. Security Council's blessing, may be explained by, or at least related to, 50 U.S.C. § 1547(b), which reads:

Nothing in [the War Powers 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 November 7, 1973, and pursuant to the United Nations Charter or any treaty ratified by the United States prior to such date.

If Obama plans to mount a defense for his non-compliance with the Resolution based on section 1547(b), though, that's a very stupid plan.

NATO certainly qualifies as a "high-level military command," and it was established prior to November 7, 1973, by a treaty ratified by the U.S. before then. But Section 1547(b) only means the POTUS doesn't need Congressional approval under the Resolution merely for "participat[ing] jointly" with NATO members in NATO's "headquarters operations." So boots on the ground in Brussels are okay, even if those Natonians get to arguing and tussling there at NATO headquarters; the War Powers Resolution didn't require the U.S. to pull out of NATO, in other words. There's no way, however, that dispatching a U.S. Navy F/A-18 to blow up a SAM site in Libya during a civil war there amounts to participation in NATO "headquarters operations."

Nor does section 1547(b) mean all U.N.-blessed action is okay. Rather, the reference to the U.N. is simply to make clear that the "participa[tion]" in "headquarters operations of high-level military commands" may include such high-level military commands as were established pursuant to the U.N. Charter prior to November 7, 1973, instead of pursuant to a prior treaty ratified by the U.S. (I'm thinking that was intended as a carve-out for some of the existing peace-keeping operations when the Resolution was passed, but I haven't checked the historical context.) It certainly can't include anything the U.N., much less just the U.N. Security Council, has done since 1973, however.

One would have to be a shockingly incompetent lawyer to claim that this section exempts what Obama's doing from War Powers Resolution coverage. I'm very much afraid, however, that this administration includes some shockingly incompetent lawyers.

Posted by Beldar at 09:33 PM in Congress, Foreign Policy, Global War on Terror, Law (2011), Obama | Permalink


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(1) Gregory Koster made the following comment | May 21, 2011 1:23:09 AM | Permalink

Dear Mr. Dyer: This is just another step in the endless bad faith legal arguments The One's administration. We saw it the health care ramming through, we saw it in Guantanamo, we saw it in the Black Panthers non-ramming through. What does The One care? The Ivy League legal establishment is behind him to the last galoot hoping for an assistant secretaryship or some other bauble that can still be used to beat the despised middle classes in the hope of ramming through the Left's agenda. You tried some French in your Ginrich post. Try this as The One's motto.

Sincerely yours,
Gregory Koster

(2) Beldar made the following comment | May 21, 2011 4:21:10 PM | Permalink

Re-reading this yet again, I see that I ought to have explained, perhaps, what I meant about "consistent with."

If the letter had said "pursuant to," that implies "Congress made me."

But "consistent with" lets this POTUS, and any POTUS, say: "Obama just sent that letter because he felt like being polite and avoiding the argument, not because he knew he had to, 'cause he didn't have to. It was really just a coincidence."

(3) Milhouse made the following comment | May 22, 2011 2:16:56 AM | Permalink

1. What if a serviceman on station off Libya were to turn to the JAG to clarify whether the orders he is receiving are lawful, and therefore he would be a criminal if he were to disobey them, or unlawful, and therefore he would be a criminal were he to obey them? Or if he were to take the same question to a court? Is a serviceman liable for engaging in an unauthorised war?

2. I agree that the judiciary has no business resolving disputes between the other two branches, simply because it is their equal, not their superior. The Supreme Court has no more business ordering the President around than the Congress does. If Congress decides that the President is acting unconstitutionally, it has two weapons at its disposal: censure and impeachment.

(4) Milhouse made the following comment | May 22, 2011 2:22:18 AM | Permalink

I still don't understand why no journalist has made the President and Vice President address the explicit statements they made when it appeared as if President Bush might bomb Iran. I understand that Harry Reid killed a senate resolution that was made up pretty much entirely of Senator Obama's own words, but I think the House ought to wrap those words into a censure motion, or into an article of impeachment, and thus force the President to respond to them. Any response he makes will do, because the only possible ones are to apologise and start complying with his own previously stated view of the constitution, or to admit that his previous view was wrong, that Bush could have bombed Iran without Congress's permission, and therefore that any future president may do the same.

(5) Beldar made the following comment | May 22, 2011 8:11:31 AM | Permalink

Milhouse (#3): I'm quite confident that there is no criminal sanction against anyone — not the POTUS, nor anyone acting under his authority and orders — for violating the War Powers Resolution. You're right that Congress has power to push back against the Executive who ignores the Resolution, with impeachment being the ultimate such power, but the more practical constitutional means for push-back is simply to de-fund what the President is doing. Realistically, though, that's not going to happen to Obama over Libya anytime soon either.

(6) willis made the following comment | May 22, 2011 10:57:36 AM | Permalink

The letter from the POTUS to Congress seems to me a Nolo plea.

(7) ed made the following comment | May 22, 2011 11:21:58 AM | Permalink

You made the snarky comment about "where is this place called NATO."

Point well taken, except for the fact that the law has no problem expecting me to accept a corporation as a "person", despite having no physicall form.

(8) sherlock made the following comment | May 22, 2011 11:58:11 AM | Permalink

"Is a serviceman liable for engaging in an unauthorised war?"

He's perfectly safe if there is a Democrat in the White House. OTOH, if there is a Republican, he is vulnerable even if it is formally authorized. This is the protection racket that Democrats have been running with US national security for years - keep us in power and you can legitimately protect the country. Let the other party into power, and we will hamstring them at every opportunity: your choice!

(9) Steve made the following comment | May 22, 2011 12:39:37 PM | Permalink

"whether this is the sort of "political question" that the federal courts are supposed to refuse to get involved in."

It's not. It's clearly a constitutional question, which is the sort of thing the courts involve themselves in all the time. Does the President have the authority under the Constitution to initiate a war - against any country he likes, a country which has not attacked us - without the authorization of Congress? It's hard to see how that is a purely "political question". You might as well argue that everything any branch of government does is a political question.

For instance, if Congress passes a law abridging the freedom of speech you could say that this a political question to be addressed by the voters at the ballot box. There's an element of truth to this - the ultimate power in our system of government is SUPPOSED to be the people - but I doubt if you'd give the courts a pass for sitting on their hands in other situations.

(10) Neo made the following comment | May 22, 2011 1:02:27 PM | Permalink

that letter is fairly typical of what previous administrations have done while attempting to comply without admitting or implying any need to comply.

Funny how that approach didn't fly with the Obama administration in regard to Honduras' removal of President Zelaya. The US claimed that since they hadn't mention certain portions of their constitution during the process of removing President Zelaya, that they couldn't be used as justification afterward.

(11) Beldar made the following comment | May 22, 2011 6:50:31 PM | Permalink

Steve (#9), I think I follow what you're trying to say, but you may not be familiar with the fairly extensive set of precedents that stake out the "political question" doctrine. I'm not using that term in the manner you seem to have assumed (quite reasonably): It's not a synonym for "politics" or "an issue with political overtones that requires constitutional interpretation."

I'm not endorsing or adopting Wikipedia's treatment of the political question doctrine, nor its treatment of justiciability more generally, but those entries do give some examples of past occasions when the federal courts have refused to become involved in certain constitutional confrontations and issues.

An example is when the Supreme Court, in 1993, refused to consider whether U.S. District Judge Walter L. Nixon, Jr.'s impeachment by the House and conviction by the Senate violated the first sentence of the Constitution's Impeachment Trial Clause (Art. I, § 3, cl. 6), which provides that the "Senate shall have the sole Power to try all Impeachments." Judge Nixon asked the federal courts to declare that Senate Rule XI, under which the Senate's presiding officer had "appoint[ed] a committee of Senators to 'receive evidence and take testimony,'" violated the constitutional grant of authority to the Senate to "try" all impeachments because Rule XI prohibited the whole Senate from taking part in the evidentiary hearings. To resolve that claim, one certainly must interpret the Constitution; moreover, the claim relates to a general subject, "trials," that the SCOTUS knows quite a bit about. But instead of answering that the Senate was right, or that Judge Nixon was wrong, the Supreme Court said, in effect, "Not listening, can't hear this kind of claim, la-la-la-la!" — and put its fingers in its (collective set of) ears.

The "political question" doctrine is limited, else the Supreme Court wouldn't have been able, in 1974, to order President Nixon to turn over the Watergate tapes in response to a federal court subpoena issued at the behest of the Special Prosecutor. But it only reached that result after considering and rejecting a threshold argument by Pres. Nixon that that the political question doctrine prohibited the federal courts from involving themselves at all.

(12) PersonFromPorlock made the following comment | May 22, 2011 8:14:42 PM | Permalink

I believe it can be argued from the language in the Constitution: "The President shall be Commander in Chief" that C-in-C and President are two separate offices, with the only qualification for C-in-C being that the incumbent is also President.

If so, then the Congress's power to regulate the military gives it power over Obama in his C-in-C role, even while it has no such power over him as President. The fact that this interpretation avoids the conflicts allowed by duplicate final authority over the military (the current interpretation) is an argument in its favor.

Moreover, such powers as attach to the C-in-C don't transfer to the President, a confusion GWB was prone to.

Until we come to some such understanding, the President is free to use the military as he will (subject to the power of the purse). He can go to war, refuse to go to war, or refuse to stop a war because the Constitution, as we currently read it, gives him a free hand with the military. The WPA is, oddly, unconstitutional because it commands the co-equal President, not the congressionally-subordinate C-in-C.

(13) Beldar made the following comment | May 22, 2011 9:13:05 PM | Permalink

Ed (#7): NATO wasn't created to limit its member-states' legal liability in civil courts. That's the main point of a corporation.

If we're going to use comparisons from domestic civil law, NATO isn't even a general partnership in which every partner can bind the others through their joint and several liability for partnership obligations. Rather, it would be closer to a loose aggregate of individual actors pooling resources as limited cross-guarantors of each other (not for purposes of liability, but defense against attack by non-members).

(14) Beldar made the following comment | May 22, 2011 10:04:03 PM | Permalink

Editing note: In an update above, I speculated that section 1547(b)'s carve-out for "participa[tion]" in such "headquarters operations of high-level military commands" as were established pursuant to the U.N. Charter prior to November 7, 1973, was intended to permit continued participation of U.S. forces in then-existing U.N. peacekeeping missions. I made a wild, inaccurate guess that it was for operations in the Sinai, but that didn't happen until 1981, so I've removed that supposition from the post. I'm thinking now it could have been a reference to our forces still in South Korea, but that's another wild guess.

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