What About the War Powers Act?

Blast from the past:

On Sept. 24, 1990, then-Senator William S. Cohen (R-Maine, later to become Clinton's secretary of defense) wrote in the Washington Post [see page 14 of pdf] that Congress would be well advised to follow the rules of the 1973 War Powers Act in authorizing the first President Bush to kick Saddam Hussein out of Kuwait.

The Modern Tribune argues that although the 2002 authorization of force contained provisions making any subsequent action subject to the War Powers Act, the conditions of the act were never met, rendering the invasion illegal. I don't know enough about the enforcability of such an act to argue this point one way or the other, but that said, I definitely don't see the WPA the same way the author of the Modern Tribune piece does.

The MT author interprets the act as requiring evidence of a "clear" and "imminent" threat in order for military action to be lawful; I wouldn't necessarily object if it did say that, but I think it's a stretch to read it that way. One key section states: "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." Near as I can tell, item (2) opens the door for Congress to authorize an attack on a rogue banana peel and that would be perfectly legal -- if rather silly. (Debaters, here's the full text of the act. What do you think?)

What I do know is that for the act to have any teeth whatsoever, Congress would at least have to attempt to enforce it, and as Leslie H. Gelb and Anne-Marie Slaughter explained in an op-ed last month, presidents and members of Congress pretty much ignore the legislation. (Gelb and Slaughter advocate the return of the constitutional declaration of war.)

One of the more interesting bits of H.J. Res. 110 Authorizing Use of U.S. Armed Forces Against Iraq is section 2(b)(2)(B). (A great wonder of government is that a resolution barely longer than a standard op-ed would actually have a subsection b, paragraph 2, subparagraph B.) Anyway, 2b2B requires that before exercising the authority given by the resolution, the President must "transmit to Congress ... a comprehensive plan for long-term cultural, economic, and political stabalization in a free Iraq."

This leaves me wondering -- did he meet that requirement? If so, what happened to said comprehensive plan? Or have we only just now gotten it, in the form of the modestly-titled National Strategy For -- begin 72-point font -- VICTORY IN IRAQ.

For more on the nsfVII, check out Jim Hoagland's column. The nsfVII kind of reminds me of when one Maryland county executive, in the face of growing doubt about his crime-fighting abilties, hastily released a document that essentially restated everything the county was already doing to reduce crime. The problem was, however, that it wasn't working. This is the essential question, raised in a Post editorial today: A consensus may be emerging on a plan for Iraq, but does the plan offer a realistic solution?

By Emily Messner |  December 1, 2005; 5:43 AM ET  | Category:  Beltway Perspectives
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Hi Emily! Yeah, I think you have fairly succinctly put the War Powers Act in terms people can understand:

"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." Near as I can tell, item (2) opens the door for Congress to authorize an attack on a rogue banana peel and that would be perfectly legal -- if rather silly."

Item two indeed allows Congress to define the level, mission scope, magnitude, and type of use of force by statute. Even with the rogue banana peel, it can write law saying the banana peel can only be engaged overseas, only banana peels not full bananas are enemy, mission ends when the banana peel is defeated without mission creep into addressing rogue orange peels, and the banana peel may not be nuked.

Zealots on both sides like to word parse and depending on who is President, vapidly claim that "it is an illegal war" and the very Congress that authorized the Executive should therefore impeach him for following their instructions. And actions like Grenada and Kosovo and even Afghanistan bring out the usual anal retentive constitutional purists who say that only formally declared war should spring the military into action - and the War Powers Act itself is unconstitutional and even responding to a nuclear missile attack without formal Congressional Debate and vote is unconstitutional..

After 9/11 several of those "head in the clouds" folks said that you cannot go to war with Al Qaeda because it was a transnational force, not a specific nation that the language of Constitution specifically allows war to be declared against..

I remember Sen. Diane Feinstein talking to Constitutional scholars wanting a Formal War Vote and asking their guidance and being told that a formal vote on war would work if we only went after Al Qaeda in a specific country, but not globally. And if globally, if Congress blew by the specific language and defined Al Qaeda somehow as a "nation" what of other terrorist groups? And mentioned that the non-war letters of Marque limit action to naval forces and their shore support by tradition. Feinstein was very frustrated, but ended up agreeing with the scholars that their was a high risk given the language of the Constitution that a formal declaration of war against a non-nation might be found unconstitutional. And saying the Constitution prohibited America from defending itself after war had been started on us by Islamoids was ridiculous - clearly something had to be done, the law enforcement and dueling lawyers approach of the past had failed to deter the Islamoids (Feinstein of course didn't call them the Islamoids) - so statutory authority under the War Powers Act was indeed the way to go.

The anal retentives are still arguing on the legal margins - stuff like absent a formal declaration of war, Geneva is not invoked and all the unlawful combatants are simply civilians entitled to presumption of innocence, full American Bill of Rights privileges, full due process rights and trial by civilian juries. The position of the radical Muslim friendly ACLU. Also ridiculous. As ridiculous as the calls to impeach Clinton or Bush for executing actions Congress authorized.

With Iraq, Congress can always amend or end the 2002 Authorization of Force. They have that right. But so far, they draw away from that, perhaps remembering how they made Vietnam into a defeat by withdrawing support of the S Vietnamese forces in 1975. Clearly neither the Executive nor Congress want the Courts to meddle -

But Lefty activists have gone to the Courts, which is still their weapon of choice to bypass the democratic process, and given the Bush Administration's frequent incoherence, contradictory treatment of Islamoid combatants, have scored victories for the terrorists in various venues. A few more big attacks and the country will of course push back on the folly of civilian judges attempting to run military matters, but for now, unlawful combatants have gained new rights through the cluelessness of Justices O'Connor, Souter, Ginsburg, Breyer and their liberal counterparts on lower courts.

Posted by: Chris Ford | December 1, 2005 01:54 PM

War Powers Act? Get real, all such complex pieces of law are subject to be interpreted by whoever is in office at the time. Just like Bush and this Congress has done, and others always will. Such legislation is there to make whatever wars are started are passed off as legit, doesn't matter what the real reasons are.

What people in this country are just not understanding is the following:

1. 50 years ago, energy from oil was plentiful and the nations of the world adopted it as their primary energy source for almost all aspects of life.

2. In the past 10 years, the amount of oil available in the world has barely been able to keep up with demand. The U.S. has used up most of its' own oil reserves so is now very dependent on other countries for its' primary energy source, without which, the U.S. would very quickly collapse.

3. Currently, the demand for oil is equalling the maximum available supply which (a) makes whoever is selling it VERY rich because of increased selling prices and (b) puts the U.S. in the VERY dangerous situation of not being able to get enough energy to maintain economic grow and preventing an economic collapse.

4. Understanding item 3 above, should point to the obvious about the Middle East and Iraq, the part of the world containing 70% of world's total known oil reserves.

The U.S. is interested in the Middle East and Iraq for only one reason - access to their oil reserves. Not only can the rich elite that run the U.S. government get incredibly richer by obtaining and selling the oil energy there, but the very existence of the U.S. as a world superpower depends on a constant flow of unlimited oil energy which must come from there.

WMD, terrorists, 9/11, ...these are all symptoms of the root cause. 9/11 was brought about by the many years of abuse to the citizens of the Middle East from outsiders who do whatever is necessary to them inorder to get their share of the oil energy pie. WMD and terrorism, ...over blown stories used by governemnts to scare their citizens into over looking the atrocities they commit to get more oil energy from the Middle East.

Think about it.

Posted by: A. Reader | December 1, 2005 02:46 PM

Yeah, yeah, yeah. Oil, oil, oil. Over the past 20 years, oil PROFITS have only increased about 8 percent. That's not much. Yeah, their getting rich. It's their right. The supply is the same. We haven't depleated it in only 10 years. That's ridiculous. There is plenty of oil left on this planet for a couple of generations to live comfortably. Do you think the planet is gonna last forever? The problem is that environmentalists don't want any more refineries. If we had more refineries to supply REFINED oil to the body of demand, prices would fall dramatically. Sure, I would love to see us move away from using fossil fuels, but for now, I hope we soak up every bit of oil we can get our hands on. If we don't, the end of the world as we know it will come a lot sooner than will the drying up the oil reserves, Bubba.

9-11 occurred because we screwed up. Many 9-11's have been thwarted in the past, but that one slipped through our fingers. Big deal if we retaliate. We should. If we become inferior to any nation, country, or whatever, we will soon see dark days my friends. Forget being warm and fuzzy. Forget being politically correct. Forget arguing about Civil Rights. If we have no business infringing on people's civil rights in other countries, then you have no business defending their civil rights. Civil rights are what we agreed upon as Americans. The Constitution doesn't protect foreign terrorists and hostile militants. Babylon was destroyed for a reason. It's high time it happened again. If we have to be the ones to do it, then so be it.

Posted by: BT | December 1, 2005 04:36 PM

Many of us have thought about it a great deal.

The price of our dependence on foreign oil became painfully clear on 9-11.

We import about 60% of our oil - a large spurt of that happening in the last decade. Cars use up 40% of all the oil burned in the US. Heating and electricity use up about 7-8%. Trucks use about 12% (The rest is jet fuel and industrial use in plastics, etc).

Imagine the effect if this president had used his post 9-11 capital to tell America it was patriotic to use mass transportation, charged Detroit with building hybrids as fuel efficient as a Pruis (60 mpg), and used some of his tax breaks to make it worthwhile for people to junk their gas guzzlers for a hybrid. This would enable a huge drop in oil imports almost immediately (rather than in decades like waiting for oil-sparing hydrogen technology would). Not only would Detroit be booming, the oil rich nations would be teaching their children to be nice to the customers instead of teaching them how to blow us up. The billions we're pouring into this war would have instead gone a long long way toward a "manhattan II" project to make us energy independent in 20 years. We might some day buy foreign oil out of "charity" to keep their economies pumped up enough to be trading partners.

But what this president did is NOTHING as cars got bigger, houses got bigger, mileage plummeted, and he and his friends and family counted their silver pennies. This was a monumental betrayal of America. He tried to openly humiliate people who had backed policies to arrest the huge growth in oil imports in the last decade. Apparently he thought we could bully our way into as much oil as we pleased. But like most other imperialistic superpowers, be they Rome or Genghis Khan or the Ottomans or Napolean or the Nazis, his grasp surpassed his reach.

Posted by: patriot1957 | December 1, 2005 05:12 PM

"Big deal if we retaliate. We should"

We did. And then before we finished the job and stabilized the country we pulled our soldiers out to invade a country that wasn't involved in 9-11.

We managed the retaliation so well that the mastermind of 9-11 and his highest henchmen are still free, and most of Afghanistan outside of the major cities has gone back to the Taliban.

Napolean, Hitler, Hirohito, Ghenghis Khan, the former USSR et al also thought they could grab what they wanted at will. History isn't on our side.

Posted by: patriot1957 | December 1, 2005 05:19 PM

Re: BT

Your mind's preception is twisted badly. You should learn the real facts about our energy situation from sources other than the sound bites you get on FOX, etc.

You are also clueless about our dealings with the Middle East, Iraq, etc.

You are the perfect example of why our government can get the citizens of this country into such messes as Iraq and get away with it every time.

Posted by: A. Reader | December 1, 2005 05:21 PM

But getting back to the War Powers Act - I believe Congress authorized war as a "last resort" after diplomatic effors were exhausted. Whose responsibility was it then to make sure some real diplomatic efforts were conducted? Congress? If so they failed miserably. They forgot the lessons of Ronald Reagan - trust, but verify.

Much is made of how Saddam bribed with the oil for food program. But we had much deeper pockets than Saddam, and buying a diplomatic solution would have been a much better use of our money than lining the pockets of Halliburton.

Posted by: patriot1957 | December 1, 2005 05:25 PM

After 17 UN Resolutions, Saddam actively firing on pilots enforcing the no-fly zone, only letting inspectors in only with an invasion army assembled on his Border but not fully cooperating with the inspectors, then ignoring the UN Res 1441 ultimatum - and as we find out now - planning the insurgency starting in Jan 2003 and dispersing money , explosives caches, and agen for that purpose.......

Does anybody other than the Lefty crowd think "more diplomacy accompanied by tearful begging and extra-vigorous hand-wringing" had to be played out "before the last resort"??? Firing on the pilots was an act of war in itself. What we hadn't counted on was France's level of prostitution and Russia placing it's financial interests above what was still known back then as the WoT, rather than the struggle against Islamic Extremism.

As for bribes, Saddam was handing out 10s of billions to France, Russia, and Muslim nations to stall action and to eventually breal the sanctions. How much would you pay France for their "precious" vote? 5 billion? 10 billion? What is a whore worth to US taxpayers?

Besides, bribes to foreign politicians and foreign corporations are illegal under Congressional statute.

A Reader - Saying it's all about the Oil makes the problem simplistic and thus understandable to a Leftist used to thinking in nursery chants, who then comes up with bright solutions like "Ban SUVs and arrest Halliburton so we will have World Peace".

Islamic extremism arose in oil-free Egypt. It flourishes or flourished in oil-free Turkey, Palestine, Syria, Afghanistan, Pakistan. Conflicts of the last century involving Muslims butchering infidels or Muslims butchering less religious Muslims had little or nothing to do with Oil and everything to do with expressing a religious faith in a murderous and intolerant manner.

All oil does is make certain ME nations more powerful and influential than they would be otherwise. And outside the ME, Oil Power does not translate into similar violence or terrorism or diplomatic effort - in oil-rich countries like Canada, Brunei, Mexico, Venezuela, Russia...

Posted by: Chris Ford | December 1, 2005 06:09 PM

"How much would you pay France for their "precious" vote? 5 billion? 10 billion? What is a whore worth to US taxpayers?"
Congress has thus far appropriated 223 Billion for the Iraq war, along with priceless commodities like our world reputation and over 2000 American lives. By comparison 20 billion each to France, Germany and Russia would have been a hell of a bargain. And we could have sunk the other 160 billion into alternate energy technology, or maybe finishing the war in Afghanistan. But from reading the security council minutes after Blix Feb 14 speech in reality it probably wouldn't have been necessary to bribe them if we'd actually carried out diplomacy. The security council was shamed into passing the earlier resolution and would have been boxed into enforcing it if it had actually been given time to work. And even though the US knew that he posed no imminent threat we decided we couldn't give Blix the six months he said it would take.

"Besides, bribes to foreign politicians and foreign corporations are illegal under Congressional statute."
You don't call them "bribes", you call them "subsidies", or "investments" or whatever pleases. How do you think we got the coalition of the "willing" that we got? A bribe by any other name would smell as sweet as a subsidy.

"then ignoring the UN Res 1441 ultimatum". I guess you didn't read Hans Blix Feb 14 report : " In my 27 January update to the Council, I said that it seemed from our experience that Iraq had decided in principle to provide cooperation on process, most importantly prompt access to all sites and assistance to UNMOVIC in the establishment of the necessary infrastructure. This impression remains, and we note that access to sites has so far been without problems, including those that had never been declared or inspected, as well as to Presidential sites and private residences. "

Blix also said: " Since we arrived in Iraq, we have conducted more than 400 inspections covering more than 300 sites. All inspections were performed without notice, and access was almost always provided promptly. In no case have we seen convincing evidence that the Iraqi side knew in advance that the inspectors were coming.

The inspections have taken place throughout Iraq at industrial sites, ammunition depots, research centres, universities, presidential sites, mobile laboratories, private houses, missile production facilities, military camps and agricultural sites. At all sites which had been inspected before 1998, re-baselining activities were performed. This included the identification of the function and contents of each building, new or old, at a site. It also included verification of previously tagged equipment, application of seals and tags, taking samples and discussions with the site personnel regarding past and present activities. At certain sites, ground-penetrating radar was used to look for underground structures or buried equipment.

Through the inspections conducted so far, we have obtained a good knowledge of the industrial and scientific landscape of Iraq, as well as of its missile capability..."

What Saddam hadn't done was prove he'd destroyed everything he was known to have in 1991, but he did seem to be slowly remembering where things were with enough pressure. Blix asked for 6 months to finish, the security council except the US and Britain said Blix should get his time so long as Saddam continued to cooperate.

Oil free islamic extremism - yes, don't forget the role of Israel and similar issues. We do have a second interest in the Middle East besides oil, Israel. But I don't know if the US would be as invested in Israel solely for religious reasons if it were located someplace with no oil and/or had no monetary ties to the US.

Posted by: patriot1957 | December 1, 2005 07:30 PM

RE: Chris Ford

Poor people in poor countries do not just wake up one morning and decide to start blowing people up in other countries. Obviously there is a reason for this - such as years of abuse being inflicted on them from these other countries.

Real simplicity is viewing the world as a "left" of "right" thing... simple minds, false reality.

It's not about the oil, it about the energy required to run a nation, the world, and the malicious greed of the people fighting to maintain control of it. It's about governments who are willing to lie, cheat, and kill to get it.

You too are another example of why we are in the mess we are in today as a nation.

Posted by: A. Reader | December 1, 2005 10:21 PM

A. Reader seems to have forgotten the entire history of Africa, much less contemporary Arab history (like when three or four poor countries invaded a fairly rich one THREE TIMES!!!). Being poor and beaten down doesn't seem to have much effect on warmongering.

As to Ford. . . We 'liberals' stated you can't declare war on a terrorist organization for realistic reasons. Obviously, we can feasibly declare war on anything we want. The Utah Senate passed a law that the Great Salt Lake cannot rise above a certain level, and its punishement was pumping (that bad old lake certainly learned its lesson and has been pouting for the last two decades in drought).

We can declare war on terrorism in much the same manner that we may declare war on a salty lake; short of pumping out the whole thing, we cannot win. With a state, we can win when the state entity surrenders or we control its borders; with a lake we can pump it dry (until the next flood). All evidence seems to suggest that the terrorism lake never pumps out.

We 'lefties' saw the declaration of war on terrorism as a propaganda ploy to go after a specific target, Afghanistan. Else why haven't we invaded northern Idaho to take care of the Timothy Mcvieghs? And where is that FARC/Columbia war? When are we going into Chechnia? Palestine? Israel?

Congress authorized necessary force. Not war. No mention of war.

And I wouldn't look for Congress to push this one. Partially because it is a Republican controlled Congress. Though, I doubt even a dem controlled Congress would press this one as it opens the floodgates to hell for all future hostilities wherein the losing party pays with prison time.

Posted by: Chris | December 1, 2005 11:19 PM

American Democracy lesson for Ford:

Those silly nits called our founding fathers clearly didn't understand democracy all that well. Otherwise, why would they include that judicial branch? What with its ability to vote down unconstitutional law thereby acting as a check on an overreaching congress and executive.

Didn't they see that unscrupulous folks could make an end run around the democratic process?

Wait a tick, the judicial branch is an integral part of our democracy, so using it toward a desired aim would be part of the democratic process as defined in our constitutions!

And for those 'conservatives' oh so worried about judicial restraint, how bout Alito? A real show of judicial restraint in the pipeline there.

Posted by: Chris | December 1, 2005 11:24 PM

Emily addresses a good point in this topic: What was Bush's plan to win the peace? Winning the initial phase of the war was a cinch; It was after that victory when things started to fall apart and the Pandora's Box was opened. Whether you're for or against Bush, you've got to wonder why he dropped the ball so badly in the conduct of a war he staked so much of his prestige (and the future of conservatism) on it. It's obvious now that there was no comprehensive plan for winning the peace besides being welcomed open-armed by the Iraqis as liberators. Didn't QUITE turn out that way, now did it?

Posted by: ErrinF | December 2, 2005 01:07 AM

Emily, the interesting thing in all of this is that in the aftermath of the 9-11 attacks, the media made much of the so-called "Bush Doctrine". Well, a doctrine--any foreign policy doctrine or State Department doctrine--is traditionally spelled out in a Strategic White Paper. It is desseminated to national and international venues throught the world. It is the defining Foreign Polcy document that tells the world and our own citizens what we stand for and what our goals are.

One of the sources of the friction among the State Department, the CIA, the FBI and the National Security Agency that the media reported on during Bush's first term was that no one knew specifically what the Bush Doctrine was. It was never spelled out in any detail. In short, there really was no Bush Doctrine other than a collection of ratty, incoherent speeches that relied heavily on broad, generalized platitudes and judgemental absolutes ("..You're either with me or with the terrorists.").

I suspect that the same is true of this so called "Strategy for Victory". Bush disliked any sort of milestones that would measure whether his policies are succeeding or not. Instead, he wants everything that proceedeth out of his mouth to be taken on faith because he truly believes that "Gowwd" put him here to defeat the terrorists.

Posted by: Jaxas | December 2, 2005 11:35 AM

"If fascism ever came to the United States, it would be wrapped in the American flag." Huey Long
What is this Strategy for Victory? It is too late for Victory just another way of saying a lie. One lie after another, there are so many lies cloaked in the propaganda of this government. If you lead with a lie, you know what to expect after that.

Posted by: Gael | December 2, 2005 12:23 PM

I was under the impression that the War Powers Act's enforcement provision was struck down in the 1983 "Chadha Ruling". Which means that Congress has no mechanism by which to take action to formally override the President's decision.

Posted by: Steven | December 2, 2005 10:15 PM

On Messner's post entitled, "No Guarantees on Miers's Confirmation", readers can learn much about the integrity of the Washington Post and/or Messner.

Its bad enough to see that Emily Messner yanked a sentence out of my blog, posted it and my full name, and implied a perspective completely CONTRARY to that which my post actually made.

I posted here yesterday to correct the matter and encourage more careful scrutiny of resources before quoting them.

Now it gets worse.
Today I see that post has been deleted.

Shame, shame.
Not at all what I would expect from professional media employee. Either my correction should be reposted here, or my name and link removed from this article.

This is unethical and unprofessional.

Posted by: Matthew Goldseth | December 16, 2005 10:10 PM

In all fairness:

I would have preferred my name and quote simply be removed, but after sending a brief note to the Washington Post, the correction I supplied to the misleading blog excerpt was reposted on the original.

Posted by: Matthew Goldseth | December 17, 2005 01:01 AM

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