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Thursday, October 20, 2011

Federal courts refuse to hear challenge to Obama's Libyan intervention, but Congress should push back — with the power of the purse — over Obama's new Ugandan adventure

In a post about the Obama Administration's ridiculously stupid efforts to argue that the "kinetic military action" in Libya didn't trigger the War Powers Resolution and its associated reporting requirements and deadlines, I had this to say on May 21, 2011, immediately after "the day under 50 U.S.C. § 1544(b) by which Obama had to "terminate any [such] use of United States Armed Forces" if the War Powers Resolution were constitutional and enforceable:

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.

Today — on the very day the non-war war finally achieved the laudable (and bizarrely denied) goal of regime change via decapitation — in proceedings styled Kucinich v. Obama, it has turned out that my predictions about how the federal courts would refuse to even hear such a challenge were proved absolutely correct. From the Blog of Legal Times (link in original; hat-tip Above the Law and WSJ Law Blog):

A federal judge in Washington has dismissed a suit challenging the Obama administration's legal justification for military action against targets in Libya.

The suit, filed by a bipartisan group of congressmen in June in U.S. District Court for the District of Columbia, sought a ruling that the U.S. military strikes are unconstitutional without a congressional declaration of war....

Responding to the suit, the U.S. Justice Department said the claims raise political questions that federal district judges are not authorized to entertain and that the plaintiffs do not have standing to sue in the first place.

Walton agreed, ruling that the lawmakers do not have standing. He rejected the alleged injury the lawmakers claimed—that they have been deprived the ability to vote on a war declaration.

In a footnote, Walton questioned the plaintiffs’ decision to sue given legal precedent, he said, that didn't bode well for the members of Congress.

“While there may conceivably be some political benefit in suing the President and the Secretary of Defense, in light of shrinking judicial budgets, scarce judicial resources, and a heavy caseload, the Court finds it frustrating to expend time and effort adjudicating the relitigation of settled questions of law,” Walton said.

Take a step back. Pretend we don't have "Republican" and "Democrat" labels here, or even "conservative" and "liberal" labels, and that we're just looking at this solely as a test of power between the respective branches of the federal government.

Looking at it as part of that big picture, today's ruling granting the Administration's motion to dismiss made no new law at all: It didn't weigh or decide any facts at all; it didn't endorse Obama's argument that the War Powers Resolution wasn't implicated. It just announced that this handful of Congressmen lacked standing "either in their capacity as Members of the House of Representatives or because of their status as taxpayers" to challenge Obama's actions in federal court, even if the court assumed that all the facts they alleged were absolutely true.

This exact result was a predictable outcome, one that I (and many others) had in fact predicted — so predictable that the federal district judge who first heard it became rather grumpy about having to waste his time on it. (Indeed, one of the prior precedents on which Judge Walton relied was a 2002 case in which this same lead plaintiff, Congressman Dennis Kucinich, had tried to sue President George W. Bush over the U.S. withdrawal from the 1972 ABM Treaty without Congressional approval.) But is either today's court result or Kadafi's death likely to result in a new extra-legal precedent, an unenforceable but nevertheless notable practical precedent in the grand interplay of constitutional checks and balances in the 21st Century?

Naw, not so much. The mild and short-lived court scuffle between Obama and a handful of Congressmen here was just an isolated example of something we already knew:

If Congress, acting as Congress (as opposed to acting through its individual members who're trying to be litigants in court), declines to exercise the express powers granted Congress by the Constitution — chief among them, the power of the purse — to protect other express privileges and responsibilities also conferred upon Congress by the Constitution, including the exclusive power to "declare war," then we're not seeing an actual constitutional confrontation.

With the opposition to Obama's Libyan adventure, then, in Obama's silly efforts to claim the War Powers Resolution didn't really apply, in the resulting Congressional grumbling, and in this lawsuit, we've only seen a kabuki show intended to fool the easily fooled. Obama calculated that he could get away with something like the Libyan adventure — and this time, Congress has clearly let him. That is the only important take-away message.


UgandaBut as I've said here earlier this week, I do not think Congress should continue to let Obama get away with sending American ground forces into conflict in Uganda with neither Congressional approval nor even the merest hint of a shadow of a whisper of a threat (imminent or even just gathering) to significant American strategic interests. Such interests do not exist in Uganda. No, this particular frolicsome detour — which is indeed likely to become extremely "kinetic" at some times and places (since that's part of what Special Ops guys are known for, after all, and they're being sent specifically to catch and kill tyrants) — cannot possibly be justified under any theory other than that America is the world's policeman.

If the GOP and those Dems who opposed the Libyan adventure voted together, they could certainly override even a presidential veto of legislation defunding this sub-Saharan Africa adventure. And the GOP by itself, with its majority in the House, could certainly refuse to include funding for it in their next appropriations bill.

This is a confrontation that needs to be had. Even though the scale and risks and expenses of the sub-Saharan Africa adventure may be smaller than what we're doing in Iraq, Afghanistan, or even Libya, the Uganda operation pits the Executive's and the Legislature's respective responsibilities and powers against one another far more vividly: This isn't a Cold War-era "proxy war" like that conducted over Nicaragua in opposition to the Soviet Union's challenge to the Monroe Doctrine and American interests close to home. No one in Uganda is pursuing WMD capabilities or harboring and supporting terrorists; it has no oil wealth or other strategically important position or resources. It has nothing at all, in fact, except some very bad African men who are regularly and enthusiastically killing and terrorizing other Africans.

Ugandan flagIf Barack Obama wants to host a telethon to raise private contributions to help the victims, that would be peachy. If he wants to propose sanctions or other legislation, or encourage Congressional resolutions on relevant topics, or even to try to gather support from our allies and other countries whose interests are more directly involved, or who simply share our humanitarian concerns, I'll not say a word of criticism. And I am, in general, a strong supporter of a strong Executive Branch, with a great deal of practical and implied power to respond to emergencies, conduct American foreign policy, and direct the U.S. military as Commander-in-Chief both in and out of war.

But this is too much. This is genuinely unprecedented, and the practical precedent it threatens to set is a bad one. The GOP presidential candidates need to start talking about this, because it's a mark of how fundamentally flippant Barack Obama is when it comes to his execution of his Oath of Office and the Constitution. But Congress needs to push back, current electoral politics notwithstanding, because all of its members, Republican and Democrat, have an institutional duty to respect and preserve Congress' proper role in our system of checks and balances.

Posted by Beldar at 07:01 PM in Congress, Current Affairs, Foreign Policy, Global War on Terror, Law (2011), Obama, Politics (2011), SCOTUS & federal courts | Permalink


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(1) Mark L made the following comment | Oct 22, 2011 12:56:57 PM | Permalink

As bizarre as a Ugandan intervention is, it does have one significant difference with our Libyan intervention -- use of sending troops to Uganda in an advisory role is quite likely permissible under the Lord’s Resistance Army Disarmament and Northern Uganda Recovery Act of 2009.

I suspect this may go beyond the intention of "offering assistance" as envisioned by the drafters of this act, but its not the first time that Congress passed poorly drafted legislation.

I also agree with you that sending in military advisers appears to be a feckless decision, redolent of "Cowboy Diplomacy," but it at least has some legal basis.

Beyond that I know not. I am an engineer by training, not a lawyer.

(2) Michael made the following comment | Oct 22, 2011 5:50:51 PM | Permalink

1. Who cares?
2. I suppose presidents have been dispatching troops or having generals organize missions since 1945 that didn't fit into authorizations. Refreshing perhaps to hear about it?
3. OTOH, impressive how a con law professor can mess up con law. Wait until a Republican president authorizes force and a Democrat, chosen for tolerance of irony, raises the War Powers Act.

(3) Beldar made the following comment | Oct 22, 2011 7:12:53 PM | Permalink

Mark L (#1): Thanks, as always, for your comments! I think the key distinction is that these Special Forces troops are being sent to track down and kill specific people — not for training of a host government's own forces, which would indeed be routine. I haven't looked at that legislation, which I suspect is also true of the overwhelming majority of legislators who voted for it, but I doubt that it authorizes an American combat mission in Uganda. But even if it does, then it ought to be repealed because, again, America has no important strategic interests, even with the broadest definition of that concept, in Uganda.

(4) Beldar made the following comment | Oct 22, 2011 7:27:52 PM | Permalink

Here's Obama's "consultation" with Congress, the letter describing the deployment and mission. Key paragraphs, picking up precisely on the legislation you mentioned, Mark:

...Since 2008, the United States has supported regional military efforts to pursue the LRA and protect local communities. Even with some limited U.S. assistance, however, regional military efforts have thus far been unsuccessful in removing LRA leader Joseph Kony or his top commanders from the battlefield. In the Lord's Resistance Army Disarmament and Northern Uganda Recovery Act of 2009, Public Law 111 172, enacted May 24, 2010, the Congress also expressed support for increased, comprehensive U.S. efforts to help mitigate and eliminate the threat posed by the LRA to civilians and regional stability.

In furtherance of the Congress's stated policy, I have authorized a small number of combat equipped U.S. forces to deploy to central Africa to provide assistance to regional forces that are working toward the removal of Joseph Kony from the battlefield. I believe that deploying these U.S. Armed Forces furthers U.S. national security interests and foreign policy and will be a significant contribution toward counter LRA efforts in central Africa.

The press has consistently characterized this mission as being one to eliminate Kony and his gang. I concede that Obama's letter does claim that this is an advisory-only mission:

Our forces will provide information, advice, and assistance to select partner nation forces. Subject to the approval of each respective host nation, elements of these U.S. forces will deploy into Uganda, South Sudan, the Central African Republic, and the Democratic Republic of the Congo. The support provided by U.S. forces will enhance regional efforts against the LRA. However, although the U.S. forces are combat equipped, they will only be providing information, advice, and assistance to partner nation forces, and they will not themselves engage LRA forces unless necessary for self defense.

Yes, our special forces troops have a long history of working with and training up indigenous forces. But the "approximately 100" special forces so committed include two "combat-equipped team[s] and associated headquarters, communications, and logistics personnel." Of course no one wants American trainers to lack leadership, communications, or logistical support; no one wants our guys in dangerous places without the full means to protect themselves as robustly as necessary.

However, those sorts of non-combat activities — and indeed, all sorts of very sophisticated military and para-military training and support — are all capable of being outsourced to civilian contractors (which of course include ex-special forces people). Obama continues to rely on such private contractors, despite criticism, just like Dubya did. One presumes that private efforts were considered and rejected as inadequate for the real mission; they may indeed have already been tried and failed (as per Obama's letter's reference to previous "limited U.S. assistance"). One likewise must presume, from the involvement of uniformed special operations forces, that even the CIA's (or other covert agencies') covert capabilities have been deemed and/or proven inadequate.

No, the main mission here is no more to train "Ugandan security forces" than our air strikes on Kadafi's SAM sites were intended to protect his civilian population (which generally didn't suffer from much ground-to-air missile depredation). You send in the uniformed military guys to do their bad-ass, incredibly brave and kinetic specialty. They're obviously intending to chase the bad guys not only everywhere in Uganda, but in any and potentially all of four adjoining countries!

And look at the last sentence: It follows the same precedent previous American presidents have followed, characterizing this Congressional "consultation" as being "consistent with" — pointedly not "pursuant to," because that might imply presidential acquiescence in — the War Powers Resolution (not "Act," and that's another fine distinction that a supporter of Executive authority wants to see preserved).

Obama's lawyers and political advisers already have access to the classified orders and plans for this operation. They know now, in other words, what Congress and the public would likely only learn if something goes wrong and there's a "Desert One"-type screw-up with American lives lost. And based on that secret information, they expect something sufficiently warlike to happen, with enough of an associated risk that it will later become public, such that they feel an urgent need to cover Obama's butt with a WPR consultations letter.

So you can accept at face value the stuff about "we're only taking our combat gear in case we have to protect ourselves." Or you can draw the obvious inference that what these forces are tasked and expected to do could potentially get him hauled up for impeachment for prosecuting an undeclared war without Congressional authority and in violation of the WPR. That degree of ass-covering, I submit, would not be necessary if what's about to happen were more like our training missions to American ally states and less like our non-war war in Libya.

In other words: Uganda is about to be like Libya, but without the handy coastline, and with acknowledged American boots on the ground.

(5) ColoComment made the following comment | Oct 22, 2011 7:54:03 PM | Permalink

Obama says, "I believe that deploying these U.S. Armed Forces furthers U.S. national security interests and foreign policy...."

Nice, smooth assertion that is, but the first questions that come to my mind for Obama are: what ARE the U.S. national security interests that are thus furthered, and since you don't have a coherent foreign policy to start with, what furtherance, exactly, do you see happening? He failed to expose the devilish details (because he can't.)

I am disgusted at the delegation of power and authority that Congress has gifted to the executive over the past few decades. Congress writes thousands of pages of vague and ambiguous laws and lets the unaccountable executive (and bureaucratic) agencies determine the rules that we all (but generally, not them) must live by.

The most recent disclosure of Obama suggesting that what he can't get by Congressional action he'll get via agency rulings is essentially giving the middle finger to "We the People."

Even if it's Obama or a conservative-lite Republican contender who wins in 2012, we NEED to greatly increase the fiscally-conservative numbers in the House and take the Senate. With control of Congress, at the very least we're at stalemate; if luck, chance and votes give us the WH as well, we can start rolling back the prior 6 years.

(6) Mark L made the following comment | Oct 23, 2011 8:56:47 PM | Permalink

Beldar, I agree with you that the law probably did not authorize the use of American troops as assassins, and that if it does it was a bad law.

My real point was that the issue is fuzzed up by Congress using a "Ready, Fire, Aim" process for passing legislation, one the previous Congress was notorious for and one that this Congress is marginally better than the previous one.

Personally, I feel that we need to make laws and regulations less complex and more transparent. There was a Roman who stated "Complex laws are a thicket that ensnare the virtuous and shelter the wicked. The Lord’s Resistance Army Disarmament and Northern Uganda Recovery Act of 2009 is an example of what that dead Roman meant.

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