June 17, 2011 at 11:05:05

Mr. President, U.N. Resolutions do not trump U.S. Law





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On June 15th, 2011-- the same day that the media announced that 10 congressmen were suing President Obama over his violation of the War Powers Act while executing his war in Libya-- the White House released a report attempting to justify why congressional approval was not needed in order to carry it out. Through a text link ABC News made an unauthorized copy of that report available. That report can be viewed HERE.

In the following article I will provide a summary of the 32 page PDF report and rebuttals to the White House's key arguments. Though other parts of the report will be covered, the most important topics in the report relating to the President's constitutional authority for single-handedly committing the United States to another war are: "U.S. Support to NATO Mission" on page 11, "Consequences of U.S. Not Participating in NATO Operations" on page 13, and "Legal Analysis and Administration Support for Bipartisan Resolution" on page 25.

Other issues such as cost, humanitarian aid, and the White House's perceived success of NATO's mission do not relate to the President's legal authority to take the U.S. into war and are included in the White House's report only to 1) blur the clear lines of constitutional law by making emotional arguments and 2) divert the focus of the argument by trying to assure the U.S. Congress that the money spent for the U.S. military operation in Libya doesn't cost too much money (in the White House's own opinion, of course). On that last point, the question of taking a country into war isn't only one of financial cost, but also of gambling with national security, the lives of U.S. personal, and whether or not there is a legitimate justification for destroying property and committing murder in the name of the country, which causes blowback and further hostility overseas against the United States that will undoubtedly resonate for years. Regardless, neither point has anything to do with the legality of the President not getting permission from Congress before going to war or ignoring the War Powers Resolution deadline.

The report also includes a "Contents of Classified Annex" at the end listing topics that don't address the legal issues mentioned above regarding constitutional authority, and can't be assessed in order to address the imminent threat question because the text of these topics haven't been made available, though the topic titles appear to have nothing to do with imminent threats to the U.S., only logistical issues involved in the execution of the Libyan war. Nowhere else are any of the topics listed cited in the White House's arguments trying to justify the President's actions in Libya. If there were an actual imminent threat forcing the President to take the U.S. to war listed in this annex, he would need to cite it openly in his argument to the Congress and to the American people.

****


The text of the report starts on page 2--"Overview of United States Activities in Libya"

It begins:

"In his address to the nation on Libya on March 28, 2011, President Obama presented a comprehensive explanation for why he authorized military action as part of an international coalition to protect the people of Libya and to enforce U.N. Security Council Resolution (UNSCR) 1973."

(UNSCR) 1973 is a U.N. resolution passed in March allowing the Security Council to enforce a no-fly zone over Libya. The establishment of a no-fly zone is an aerial blockade, which is an act of war. Throughout the entire report the only specific legislative acts cited by the White House justifying his actions are U.N. resolutions. (UNSCR 1973, and UNSCR 1970) The President believes that a mandate from the U.N. trumps U.S. Constitutional requirements for him get permission from Congress to declare war, and the 60 day limit set down for him to commit troops overseas without congressional approval outlined in the War Powers Resolution. In this belief the President is dead wrong.

In Chapter VII, Article 43 of the U.N. charter titled "ACTION WITH RESPECT TO THREATS TO THE PEACE, BREACHES OF THE PEACE, AND ACTS OF AGGRESSION" describing the U.N. Security Council's legal authority and process for waging war, it states:

"The agreement or agreements shall be negotiated as soon as possible on the initiative of the Security Council. They shall be concluded between the Security Council and Members or between the Security Council and groups of Members and shall be subject to ratification by the signatory states in accordance with their respective constitutional processes."

The law can't be any clearer--U.N. mandates do not trump the U.S. Constitution or the constitutions of any of the individual member nations with respect to their participation in overseas conflict.

Throughout page 2 the report rehashes what led to the conflict in Libya. One important point to note is this appeal:

"In contrast, the war in Bosnia raged for nearly two years before the first NATO military operations took place, and three years before NATO began ground strikes to protect the civilian population."

Referencing Bosnia as a historical precedent for why the President couldn't wait for approval from Congress is not a legal argument when it doesn't pertain to the immediate security of the United States. On top of that, since the White House was able to put together this formal report to defend itself so shortly after it found out that the President was being sued, there is no reason to believe that a similarly styled request for permission from Congress couldn't have been presented and voted on in an emergency session before the bombs started falling on Libya if the President felt there was such an important need to go to war.

In respect to the war in Bosnia, which was never officially declared either, there was at least a sliver of congressional approval. According to a report written by Richard F. Grimmett from the Foreign Affairs and National Defense Division of the Federation of American Scientists on November 25th 1996:

"On August 13, 1992, the U.N. Security Council adopted Resolution 770 calling on all nations to take "all measures necessary" to facilitate the delivery of humanitarian assistance to Sarajevo. On August 11, 1992, the Senate had passed S.Res. 330 urging the President to work for such a resolution and pledging funds for participation, but saying that no U.S. military personnel should be introduced into hostilities without clearly defined objectives. On the same day, the House passed H.Res. 554 urging the Security Council to authorize measures, including the use of force, to ensure humanitarian relief. Thus, both chambers of Congress supported action but not by binding legislation authorizing the use of U.S. forces."

Though troops were eventually sent to Bosnia, these resolutions provide a record of at least some attempt at congressional oversight.

***

On Page 3 of the report the White House states:

"Moreover, the Libyan government's actions posed a significant threat to regional peace and security."


It goes on to cite refugees fleeing to other countries as the cause for regional instability, but again this does not explain how this presented an imminent threat to the United States. Indeed Hitler invading his neighbors presented an even greater regional instability that would of course affect the future security of the United States, but that didn't stop the United States from getting an official declaration of war from Congress before bombing Germany (and only after we were attacked by Japan, I might add). Again, there is no reason a vote on bombing Libya couldn't have been taken before the United States got involved.

For the rest of pages 3 and 4 the White House argues that had the United States not taken action in Libya the U.N.'s credibility would have been in question and that essentially the U.N. resolutions cited before would have been shown to not have any teeth.

As demonstrated earlier by the U.N.'s own charter, the resolutions don't have any teeth"not without validation from each member nations' respective constitutional processes.

***

Page 5: "Political and Military Objectives and Means"

It states:

"The President has honored his commitment to focus the preponderance of our military effort on the front end of operations in Libya, using our unique assets to destroy key regime military targets and air defense capabilities in order to establish a no-fly zone (again, these are acts of war) and enable protection of civilians as part of the enforcement of UNSCR 1973. These actions set the conditions so that, after a limited time, command of these operations transferred to NATO. Since that April 4 transition, U.S. military involvement has been limited to a supporting role, enabling our allies and partners to ensure the safety of Libyan civilians."

The notion that the NATO mission in Libya is enabling the protection of civilians is a joke. Libyan rebels are carrying out genocide and NATO bombs are killing civilians, and damaging civilian buildings, such as Al Fateh University, Campus B. There's even evidence that depleted uranium bombs are being used by NATO forces.

In regards to the military involvement only being in a supportive role after April 4th, according to an Associated Press article posted on the Army Times' website on April 13th 2011:

"Pentagon officials disclosed Wednesday that American fighter jets have continued airstrikes inside the country even after the United States turned the mission over to NATO last week."

Pentagon officials admitted that the missions included bombing attacks on Libyan surface-to-air missile launchers.

"It was the first time the Pentagon acknowledged that airstrikes continued after the U.S. handed over control of the Libya mission to NATO on April 4."

Furthermore, the article states that military officials claimed U.S. fighter jets would still conduct airstrikes in Libya (after April 4th) if NATO made a special request and it was approved by top Pentagon leaders. The fact that U.S. fighter jets can still be called upon to carry out bombing missions in Libya proves that the U.S. is not acting only in a supportive role, and can still be involved in conflict based on the decisions of military officials, not the U.S. Congress. On top of that, the approval process only applies to airstrikes meant to protect civilians from Gadhafi's forces. Because the U.S. fighter jets taking out Libyan air defenses have been assigned to NATO and are considered NATO aircraft, the Pentagon argues, their use falls under separate leadership and are not subject to the post April 4th halt in U.S. combat.

(But they're still U.S. fighter jets!)

Understanding this context, one can see why the last line in the quote from the White House's report posted above is intentionally misleading--" Since that April 4 transition, *U.S.* military involvement has been limited to a supporting role, *enabling our allies and partners to ensure the safety of Libyan civilians*."

***


The rest of page 5 and up to page 8 rehashes the history of White House executive orders signed and U.N. Resolutions passed in response to the Libyan crisis, as well as once again mentioning how the White House believes we took too long to respond in Bosnia during the 90's. In one section, under the title "Where We Are Now" it lists numerous actions that are also being taken by U.S. allies, as if that's relevant to the debate over the President's constitutional authority to take us to war without permission from Congress or his ignoring of the War Powers Resolution deadline.

Pages 9-10 report how wonderful the White House believes the Transitional National Council of Libya (the widely recognized interim government) is and all of the things it has done, and reminds the reader how the United States didn't act alone but led a coalition of other nations...again this has no relevance to the debate.

***

Pages 11 ("U.S. Support to NATO Mission") and 12 describe the role of the U.S. in combat, reiterating the same misleading argument mentioned earlier that the operations were fully under NATO command by April 4th and that the mission of the *U.S.* (not NATO which includes U.S. fighter jets that are still bombing the country) focused now on maintaining the naval arms embargo and the no-fly zone (again, acts of war) and protecting civilians. They also list the objectives of NATO in the mission.

"As President Obama has clearly stated," it also says on page 12, "our contributions do not include deploying U.S. military ground forces into Libya, with the exception of personnel recovery operations as may be necessary."

According to the President, because the conflict in Libya only involves U.S. fighter jets dropping bombs and no boots on the ground (yet) the current actions of the U.S. in Libya do not constitute acts of war. By this same argument, then, the Japanese bombing Pearl Harbor didn't constitute an act of war, either. Who is he kidding?

***

Page 13: "Consequences of U.S. Not Participating in NATO Operations"

This is it. This is the imminent threat to the United States that required the President to act immediately in order to protect its national security without getting approval first from the U.S. Congress. One would think that such an argument would consist of pages and pages of detailed analysis.

But it doesn't.

It's only one paragraph"not even a full half of the page.

Again it lists UNSCR 1973 as (the already debunked) justification for the President's military action in Libya with no immediate threat to U.S. national security cited. The short argument made for continuing the U.S. military's role in Libya is, essentially, that if the U.S. withdrew its military support in Libya, its NATO allies might be unable to continue alone, and if they withdrew before the meaningless September 27th NATO extension passed, NATO would lose credibility.

Maybe, or perhaps (more likely) President Obama would.

On the flip side, however, the U.S. Constitution would gain more credibility. (No, we mustn't have that.)

***

Pages 14-16 lay out the cost for U.S. military operations in Libya, 17-19 the cost for humanitarian operations, and page 20 lists the cost for the Department of State's operations. While this is all useful information, it's irrelevant to the argument.


***

Page 21--"Analysis of Impact on U.S. Operations in Iraq and Afghanistan"-- is also irrelevant but interesting. The one page argument reassures the reader that the war in Libya has not had any significant operational impact on the activities of the U.S. in Iraq and Afghanistan. In relation to the DOD's operations in these countries it states:

"All the forces that were briefly diverted from other operations have been replaced, with the exception of one Guided Missile Destroyer (DDG). That capability will be replaced during June 2011. In some cases, forces were delayed in arriving in Iraq and Afghanistan, but the operational impact was mitigated by forces already supporting these operations."

Hey, wait a second"I thought we were trying to remove our forces from those countries. The U.S. is supposed to start a drawdown of troops from Afghanistan next month, and all U.S. forces are supposed to be out of Iraq by the end of 2011. Just last summer President Obama went on TV and declared an end to the combat mission in Iraq. (Tell that to the families of the two U.S. soldiers who died during an insurgent attack in Iraq this week, or the pilots of the U.S. military helicopters that engaged in combat with insurgents in Iraq on Wednesday. )

***

Pages 22 and 23 go on to explain the operations of the Transitional National Council of Libya, the political interaction the U.S. has with it, and its transition planning to an eventual new government.

On page 23 it is written:

"To facilitate the vesting of assets blocked by the United States, the Administration supports Senate Bill 1180 (which hasn't been passed yet) that would allow the United States to confiscate property of the Government of Libya to be used for costs related to providing humanitarian relief to the Libyan people. Under this vesting authority, the President would have the authority to decide precisely how the assets would be used, consistent with the legislation. The President would only disburse assets through means that meet our legal and policy standards regarding transparent oversight of the disbursements."

So while the President is not asking for congressional approval to wage war, he is asking for approval to steal the property of the Libyan government in the name of offsetting the costs for humanitarian relief during the war. The question not addressed here is how President Obama would plan on confiscating property and enforcing U.S. control over it without using ground forces? What if the Libyan people didn't want to give up the property? Fighter jets can only succeed in blowing the property up.

Could Senate Bill 1180 be a backdoor way of getting legal cover for eventually sending troops into Libya?

Within the bill it states:

"(1) IN GENERAL- The President--

'(A) may confiscate and vest, through instructions or licenses or in such other manner as the President determines appropriate, funds and other property of the Government of Libya that are subject to the jurisdiction of the United States in the amounts specified in subsection (f)""

According to THIS online le gal dictionary, the definition of confiscate is: "to expropriate private property for public use without compensating the owner under the authority of the Police Power of the government. To seize property."

That President Obama is seeking permission to confiscate the property of the Libyan government demonstrates that the U.S. and Libya are at war.

Under the definition of confiscation, the legal dictionary states:


"Commercial nations have always considerable property in the possession of their neighbors: and when war breaks out the question, what shall be done with enemies property found in the country, is one rather of policy than of law, and is properly addressed to the consideration of the legislature, and not to courts of law. The strict right of confiscation exists in congress; and without a legislative act authorizing the confiscation of enemies' property, it cannot be condemned."

***

On page 24 under "Analysis of Potential Ties to Extremist Groups" the White House attempts to dismiss reports of ties between anti-U.S. terrorists and the Libyan rebels by focusing solely on the U.S. relationship with the Transitional National Council of Libya, claiming that TNC itself has no relationship to terrorist organizations and that it's secular in nature. However the TNC is just an administrative body and would be unable to stand up and maintain power if not for the rebel forces that are fighting the war for it. Indeed without NATO committing "boots on the ground" to the war, these rebels would make up the army that would be sharing power with the TNC due to the fact that they're the ones holding the weapons.

From "The two faces of the Libyan Rebels, which is the real one?" published on the International Business Times' website on May 31st 2011:

"A second problem derives from the fact that, the INC's (aka the TNC) purpose is essentially administrative and remains quite separate from the rebels who fight on the ground. Technically the rebels fight for the council to overthrow Gaddafi, however the discourse that emanates from the fighters is somehow less bureaucratic and West-friendly than that of the council.

In March, Abdul Hakim al-Hasidi's, a Libyan rebel leader from Derna, east of Benghazi, was quoted telling an Italian newspaper he had recruited "about 25" Libyans to fight alongside insurgents in Iraq, and claimed some had now returned and were fighting Gaddafi forces in Ajdabiya." ...


..."Interestingly, Al-Hasidi himself was captured in Pakistan in 2002 and handed over to US forces after fighting against US troops in Afghanistan. He was held in Libya and eventually released in 2008."

***

Page 25-- " Legal Analysis and Administration Support for Bipartisan Resolution"

Once again, what should be considered an important section of the White House's report receives only limited attention. In only a little over half a page the White House rationalizes the President's justification for involving the U.S. in Libya's civil war without first seeking congressional approval by insisting:


Andrew Steele editor of America 20xy-- an independent news service that highlights articles from around the web focusing on international and economic policy, and human rights abuses. The mission statement for the page is a quote from Thomas (more...)
"Given the important U.S. interests served by U.S. military operations in Libya and the limited nature, scope and duration of the anticipated actions, the President had constitutional authority, as Commander in Chief and Chief Executive and pursuant to his foreign affairs powers, to direct such limited military operations abroad. The President is of the view that the current U.S. military operations in Libya are consistent with the War Powers Resolution and do not under that law require further congressional authorization, because U.S. military operations are distinct from the kind of "hostilities" contemplated by the Resolution's 60 day termination provision."

The War Powers Resolution does not define "hostilities" and the Supreme Court has never ruled on the issue. Given that the War Powers Resolution was passed in response to previous presidents involving the U.S. in wars--(the most recent and resonating war at the time being Vietnam)-- without a declaration of war, and the concern over eroding congressional authority in deciding when the U.S. should become involved in war, or any use of the military that might lead to war, it wouldn't be crazy to assume that any form of U.S. military combat (including bombing missions) would be defined as "hostilities" and be subject to the resolution's deadline. The involvement of the U.S. in Vietnam, after all, started at a much slower pace than the U.S. has taken in Libya, beginning with the U.S. providing military advisors and transports to the French and stretching out over a span of years before official U.S. combat troops were committed.

The White House's report goes on:

"U.S. forces are playing a constrained and supporting role in a multinational coalition, whose operations are both legitimated by and limited to the terms of a United Nations Security Council Resolution that authorizes the use of force solely to protect civilians and civilian populated areas under attack or threat of attack and to enforce a no-fly zone and an arms embargo. (Again, this doesn't trump the requirements of the U.S Constitution.) U.S. operations do not involve sustained fighting or active exchanges of fire with hostile forces, nor do they involve the presence of U.S. ground troops, U.S. casualties or a serious threat thereof, or any significant chance of escalation into a conflict characterized by those factors."

The White House concludes this chapter by strongly supporting S. RES. 194, which was introduced in May by Senators McCain, Kerry, Lieberman, Levin, Feinstein, Graham, and Chambliss that-- while proudly proclaiming joyous support for everyone involved in the Libyan war (except Gadhafi)-- supports the limited use of military force by the United States in Libya as part of the North Atlantic Treaty Organization (NATO) mission to enforce U.N. Security Council Resolution 1973".

That resolution has not been passed, and one of the men listed above--Kerry--has begun to backpedal on his support of it.


***

Finally, from page 26 until the end we have "Congressional Consultation". This consists of a list of various Libya-related hearings, briefings, calls, and other communications and consultations between Congress and the Executive Branch. Trying to claim that briefing members of Congress on the situation in Libya from March 1st to June 15th equates to getting approval from Congress to commit the U.S. to war there or continue bombing Libya beyond the War Powers Resolution deadline, the White House's multipage list is, once again, irrelevant. Nowhere is any U.S. legislative granted authority cited justifying the President's actions.

Indeed, after ancient Rome fell to emperors, they too briefed the Roman Senate on the overseas adventures they had committed their armies to, though the Senate no longer had any real power to do anything about it. When an executive simply tells a legislative body what he is doing while disregarding his need to seek their authority, he reduces that body to the status of ministers beneath an unchallenged autocrat. The U.S. government is based on the rule of law, which maintains the separation of power between each branch...that has not changed. The U.S. Constitution and the War Powers Resolution are clear on this fact and on the limitations set down for the executive branch to follow when it comes to starting wars.

One of the most telling excerpts in this section of the report is the March 18th entry. It lists 18 members of Congress (none of which are involved in the lawsuit against the President, such as Ron Paul or Dennis Kucinich, who have voiced strong opposition to U.S. involvement in Libya from the beginning) being invited to the White House.

It states:

"President Obama invited Congress' bipartisan bicameral leadership to the White House to consult on the situation in Libya and brief them on the limited, discrete and well-defined participation that he envisioned for the United States to help implement the U.N. Resolution. The White House invited House and Senate Leadership, Chairs and Ranking of Foreign Affairs, Armed Services and Intel committees."

This speaks volumes regarding the President's perception of his own power and his dismissal of the U.S. Constitution under what he believes to be the greater authority of the U.N. Such a view being held by a man in a position like his is dangerous for U.S. sovereignty and for our republican form of government. The President cannot be allowed to ignore the rule of law and wage war based solely on what he envisions the United States' role in the world to be. Otherwise there will be nothing to stop him or future presidents from waging war at will without any constraint. At that point the constitution that the President took an oath to defend will cease to exist and the people of the United States will no longer be sovereigns determining the destiny of their nation, but rather subjects to an international body that no longer has to answer to them.

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