2011-06-04 A US Congress Unwilling to Exercise Its War Powers

Dueling resolutions from Republican Speaker of the House John Boehner and Democratic House Representative Dennis Kucinich sparked a debate in Congress. The debate centered around the War Powers Act, the US Constitution and whether President Obama had violated the law by taking the United States into a war in Libya.

The Kucinich Resolution (H.R. Con. Res. 251) aimed to direct the president, pursuant to the War Powers Act, to remove all troops from Libya within fifteen days after the resolution was adopted. It was an attempt to force Congress to exercise the authority that it has under the Constitution to decide when and where troops are deployed for wars and whether or not wars should be launched.

In contrast, the Boehner Resolution (H.R. Con. Res. 292) was offered by Speaker Boehner to take the wind out of the sails of the growing bipartisan movement, consisting of anti-war Democrats and anti-interventionist Republicans, who were ready to assert Congress’ legislative authority and oppose the further expansion of the Executive by the Obama Administration that has taken place as a result of the Libya War.

The resolution brought by Rep. Kucinich failed 148-265. Speaker Boehner’s resolution passed 268-145.

The passage effectively stymied Rep. Kucinich’s genuine attempt to bring an end to the shirking of constitutional responsibilities in matters of war and peace in Congress. It aimed to halt the operations that had been initiated by the Obama Administration without congressional approval. But, as evidenced by the debate, despite the near unanimous recognition that seventy-seven days into the war the Obama Administration has the US embroiled in an illegal war and Congress has abdicated its responsibility, the majority of representatives in the House were reluctant to actually exercise the authority, which the Constitution grants them.

Representatives, who understood the weight of the moment, attempted to reason and convince a servile and overwhelmingly deferential majority that there needed to be action. They called out Speaker Boehner for offering a resolution that sidestepped the responsibility Congress is supposed to uphold.

Rep. Dan Burton (R-IN), who co-sponsored the Kucinich Resolution, expressed his concern with what Boehner had put forth for debate. The resolution, Burton said, reads, “The president shall not deploy, establish or maintain the presence of units and members of the United States armed forces on the ground in Libya.”

Most of our wars that we fight now are fought from the air or from battleships. We’ve had about 250 missiles fired in Libya and about 226 of them are American. We’ve spent over three quarters of a billion dollars already and it will probably go over a billion. Now boots on the ground says that were not going to put troops into Libya, but we’ve got ships off shore, we’ve got planes in the air, we’ve got airmen who are at risk every single day and we’re committing military forces in Libya even though we don’t have boots on the ground.

Representatives Barbara Lee (D-CA) and Lynn Woolsey (D-CA) both addressed the folly of the Boehner resolution. Rep. Lee said the debate was long overdue and noted on March 30 she and a few other representatives had sent a letter to Speaker Boehner and Republican Majority Leader Eric Cantor urging debate and a floor vote on the president’s authority to continue to use force in Libya. More than sixty days later, Speaker Boehner suddenly scheduled a vote on a resolution that Rep. Lee said “politicizes a serious issue.” And, Rep. Woolsey noted the House overwhelmingly passed a Kucinich Amendment two weeks ago that was similar to what was being debated today but Speaker Boehner did not want to let Congress do the right thing so a resolution to “take the air out of questions over the War Powers Act” was being considered.

Rep. Brad Sherman (D-CA) stood on the House floor and took a sledgehammer to every justification and reason for supporting the Boehner Resolution and not asserting the authority granted to Congress under the War Powers Act.

… This is innocuous legislation. First it starts with a sense of Congress about our opinion as to what should and shouldn’t be done. It has a sentence that purports to prevent the president from putting ground forces in Libya but in fact just states that that’s our policy. It’s certainly not designed to prevent him from doing so it just says it’s our opinion that he shouldn’t…

Noting that the Boehner Resolution would hopefully require a number of questions be answered, Rep. Sherman added:

… Those who think that the questions propounded in this legislation are actually going to get us useful information are insulting the faculty of the law schools of America. Because both the Pentagon and the State Dept have lawyers capable of writing long and meaningless answers to every question we propound. And, as for getting documents, some of the documents we already have and some those same lawyers will be writing long documents about executive privilege. So we have here a document that is at most the questions for the record that the chairwoman of our committee allows me to add at the end of so many hearings…

He went further charging the resolution was actually designed to ensure Congress did not fulfill its constitutional duty and make it possible for Congress to “sidestep” the War Powers Act.

…It gives cover to those who don’t want to authorize or refuse to authorize. It says we’re an advisory body. We ask some questions so we can give you good advice. We’ll give the president some advice. It is part of the trend of an aggrandizing executive and a derelict Congress. A Congress that almost is complicit in this long process, where we are not deciders. We do not become legislators. We inquire and we advise.

Representative Ted Poe (R-TX) and Representative Jerrold Nadler (D-NY) put it even more bluntly. Rep. Nadler stated, “Shall the president like the King of England be a dictator of foreign policy, shall the president have the unfettered right to take this country to war?” Rep. Poe said he had served on the bench in Texas for over twenty years and tried several criminal cases and he remembers following the law. Not once did he sentence a person and later have the trial to prove sentencing him had been a good idea.

But, House members like Rep. Howard Berman (D-CA), Rep. Ileana Ros-Lehtinen (R-FL) and Rep. Randy Forbes (R-VA) made excuse after excuse for why Congress should not fully exercise its constitutional authority and why there should be no withdrawal of troops from Libya. Rep. Berman cited neoconservative Bill Krisol and said that the US’ refusal to continue to act would send a message to allies putting troops on the line that the US was not dependable.

Rep. Ros-Lehtinen suggested a difficult situation would simply be made worse by taking such drastic action. News that the “House of Representatives had mandated a withdrawal of US forces would send a ray of sunshine into the hole in which Gaddafi is currently hiding” and it would be “seen throughout Middle East and North Africa as open season to threaten US interests and destabilize [US] allies.”

Rep. Forbes, while claiming he didn’t support the fact that President Obama had violated the War Powers Act, asserted Obama “has information many members of Congress don’t have that we need to have shared with us.” So, Congress should give him “some latitude” to present a case for war to Congress.

At least, Rep. Berman understood the War Powers Act was not invoked in Speaker Boehner’s resolution and at the very least Congress should set up a situation where they authorize and declare the Libya war to make it legal. But, for the most part, those in support of the Boehner Resolution appeared to care little about the authority granted to them.

As evidenced by Rep. Forbes and Rep. Ros-Lehtinen, since the war has begun, most members believe it is pointless to fully take a stand. The danger of this mindset is bad enough when considering the fact that this gives President Obama the range to simply launch illegal wars whenever his Administration finds the war to be justified. Rep. Burton pointed out Obama could attack Syria and little could be done if Congress didn’t exercise its authority now. But, more importantly, today’s wars are protracted, dirty, costly and often are open-ended. Forfeiting the authority to declare simply affords the Obama Administration and future administrations the right to carry on any war and as many wars as they want with blank checks that will cost countless lives and waste taxpayer dollars on military adventures.

Nobody captured the reality of how partisan politics has typically plagued debates over war powers and or America's recent tradition of protracted, dirty, illegitimate warring as well as Rep. Timothy Johnson (R-IL):

To my Democratic colleagues, I ask you to candidly acknowledge that war is war even when a Democratic president initiates or perpetuates that war. To my Republican colleagues, I ask you to acknowledge that a sincere and effective attack on our crippling national debt without defense spending squarely on the table is indefensible and disingenuous. To all my colleagues, I ask you to acknowledge certain realities. One, our global welfare kills American men and women and innocent people all around the world every day. Two, we cannot impose our standards of democracy, humanitarian and cultural, as much as we want to, on nations who don’t want to on nations that don’t care and resent our proclaimed role as judge and jury. Three, there is little if any connection between our actions in Libya and the safety of citizens in St. Louis, Missouri or Mt. Zion, Illinois.

To conclude, President Obama has America in an illegal war, which the majority of Congress prefers to not make legal or consider ending for fear of alienating allies, sending the wrong message to America’s “enemies,” and other nonsense that those corrupted by power use to justify unjust behavior. The Congress can scarcely come up with a reason why Libya is in America’s national interest yet it pushes on as if it in the end it will make a profound discovery and find some reasons why it was good all along to launch a war.

Bush Administration lawyers did not think congressional authorization for the Iraq War was necessary. Then-Senate Minority Leader Trent Lott (R-MS) considered the push for authorization to be “a blatant political move” that was not helpful. Now, in Congress, Speaker Boehner and others find it to be not helpful to get authorization yet they think the Obama Administration has shown contempt for Congress.

Obama Administration lawyers do not think they need congressional authorization for Libya. As with the Iraq War, it does not appear members of Congress have looked at any intelligence or actually know the details of what is happening in the ground. They are only capable of discussing the war on a cosmic level and in terms of how it can build on America’s image as this mythical beacon of freedom and democracy.

The humanitarian argument for the war grows weaker by the day. If Americans believe in the Arab Spring, then there is no justification at all for a war that subverts the self-determination of the Libyan people by engulfing a revolution in an international intervention.

The casual indifference toward getting authorization, however, should not be surprising to anyone that understands how, post-9/11, the law has become a supreme inconvenience to those in power. Terror suspects are now tried with military tribunals because civilian trials just might lead to evidence that was obtained during torture being thrown out. Accountability for those who authorized torture or committed war crimes is cumbersome. Impunity is defended because it means society can look forward and not backward.

Rampant warrantless wiretapping, the thumbing through of bank and gun records without probable cause and the body scanning and patting down of American bodies at airports in violation of rights to privacy are each socially and politically acceptable because civil liberties are supposedly a nuisance to those who need to fight the war on terrorism.

One can be grateful that a debate did in fact happen because on the Patriot Act extensions voted on just over a week ago little debate occurred. But, as it seems all Congress can bring itself to do is vote to criticize the president, (perhaps because it knows full well that in the end the Obama Administration, as the Clinton Administration did with Kosovo, could simply defy Congress and keep the war going), what we Americans have is a branch of government that lectures and provides advice to an increasingly powerful executive and the reality that a constitutional law professor sits in the White House conducting an unconstitutional war with little conscience for what he has done to the rule of law in American society.