Robert Naiman / Just Foreign Policy & John Bresnahan and Jonathan Allen / Politico.com – 2011-06-02 00:37:50
Kucinich Calls the Question on Libya War Powers
Robert Naiman / Just Foreign Policy
(May 31, 2011) — Last week, voting on amendments on the 2012 National Defense Authorization Act, the House of Representatives began taking action to limit US military involvement in Libya’s civil war. Now the House leadership has agreed to a vote on House Concurrent Resolution 51, introduced by Ohio Representative Dennis Kucinich, which would direct the President, pursuant to the War Powers Resolution, to remove US armed forces from the Libya war. The vote could come as early as Wednesday afternoon. [See the Updates below.]
The US military intervention in Libya was never authorized by Congress, and thus violates US law and the US Constitution. Some have argued that other Presidents have violated the War Powers Resolution, therefore it is no big deal. This is a breathtaking argument on its face: “everyone breaks the law.” But moreover, as the New York Times noted on May 25:
many presidents, citing their power as commander in chief, have bypassed a section that says they need prior Congressional authorization to deploy forces into hostilities, except if the country is under attack. But there is far less precedent of presidents’ challenging another section that says they must terminate any still-unauthorized operations after 60 days. In 1980, the Justice Department concluded that the deadline was constitutional. [my emphasis]
On May 20, the New York Times reported, referring to the 1980 Justice Department memorandum,
Such opinions are binding on the executive branch unless they are superseded by the Justice Department or the president.
When the 60-day limit expired, Jack Goldsmith, a Harvard law professor who led the Justice Department’s Office of Legal Counsel in 2003 and 2004, said:
“this appears to be the first time that any president has violated the War Powers Resolution’s requirement either to terminate the use of armed forces within 60 days after the initiation of hostilities or get Congress’s support.”
Unfortunately, as a practical matter — whether we like it or not — Congressional war powers are not “self-enforcing.” The legal history strongly suggests that courts will not intervene if Congress fails to take action.
That’s why the war powers measure introduced by Representative Kucinich is so important. It represents the first opportunity for Members of the House not just to vote against further escalation, not just to affirm that the war was never authorized, but to vote directly to bring US military participation in the war to an end.
You can urge your Representative to support House Concurrent Resolution 51 here.
Last week, by the lopsided vote of 416-5, the House adopted an amendment initiated by Michigan Representative John Conyers to the defense authorization prohibiting the introduction into Libya of US ground troops (that is, uniformed forces, not Special Forces or CIA that are already there.)
The House also adopted by voice vote — that is, without dissent — an amendment introduced by Rep. Scott Garrett [R-NJ] affirming that “Nothing in this Act or any amendment made by this Act shall be construed to authorize military operations in Libya.”
Jake Tapper of ABC News reported that these lopsided results in the House suggested that the Kucinich resolution calling for US military withdrawal from the Libya conflict in accordance with the War Powers Resolution could pass the House.
The decisions by the Administration to go to war in Libya without Congressional authorization, and then to continue US military involvement past the 60 day limit of the War Powers Resolution, if not challenged by Congress, will set a dangerous precedent.
Robert Naiman is Policy Director at Just Foreign Policy.
1. Call your Representative
Calling your Representative has more impact than emailing, so if you can call, please do. Here are instructions for calling your Rep.’s office:
1.The Congressional switchboard is 202-225-3121.
2. Ask to be transferred to your Rep’s office.
3. Ask to speak to the staff person who handles foreign or military affairs. If you can’t speak with this person, just leave a message with the individual who answered the phone.
4. Say, “I urge Rep. ___ to vote yes on H. Con. Res. 51, which would direct the President to remove US military forces from the Libya conflict, pursuant to the War Powers Resolution.”
5. When you’re done, please take a moment and report your call.
2. Write to your Representative
If you can’t call, or as a follow-up to your call, please write to your Representative to urge him or her to vote yes on H. Con. Res. 51 by using the form below.
UPDATE: H. Con. Res. 51,
End War in Libya Vote Postponed
The Kucinich Committee
WASHINGTON (June 1, 2011) — Today, House Congressional Resolution 51 (HR 51) introduced by Congressman Kucinich has been postponed. “I am disappointed that the President and leadership feel the need to buy even more time to shore up support for the War in Libya. It’s not surprising that some are now wondering if a preliminary vote count on my resolution came out in favor of defending the Constitution”, stated Kucinich.
According to Politico.com (see story below), GOP leaders were scrambling today to come up with an alternative plan for considering the measure. Seeking to avoid a showdown over Libya House GOP leaders pulled back from a floor vote on Kucinich’s resolution. Updates will be provided on this important resolution.
GOP Fears Kucinich Resolution
WASHINGTON (June 1, 2011) — Seeking to avoid a showdown over Libya, House GOP leaders pulled back from a floor vote on a resolution by Rep. Dennis Kucinich (D-Ohio) that would bar US involvement in the NATO-led campaign to topple Muammar Qadhafi.
GOP leaders were scrambling Wednesday morning to come up with an alternative plan for considering the measure. This could include having the Armed Services or Foreign Affairs committees draft backup proposals.
Citing “lots of unrest on both sides of the aisle,” a senior House GOP aide said Republican leaders are still working through their options.
Another senior Republican staffer said House Speaker John Boehner (R-Ohio) “is concerned that if this were to come to the floor now, it would pass” and could adversely affect the NATO mission in Libya. NATO leaders on Tuesday authorized the continuation of the military campaign against Qadhafi until September.
Boehner and other GOP leaders have called a special meeting of House Republicans on Thursday to discuss the Libya situation, aides said.
The Ohio Republican told reporters on Wednesday that Obama was “technically” in compliance with the War Powers Act, despite criticism from the left and right over US involvement in the Libya campaign.
“There are a lot of questions that remain out there, and frankly I think members on both sides of the aisle are looking for answers about this, and they’re looking for some clarity,” Boehner said. “Legally, they’ve met their requirements [under] the War Powers Act.”
“We decided the House wasn’t ready to decide the question [on Kucinich’s resolution],” Boehner added. “I think before we proceed, we want to do so in what we think is the best interests of our country and allow a process for the American people’s will to be heard on the House floor.”
Boehner jokingly dismissed a question on whether the White House asked for the vote to be postponed.
“That would require somebody picking up the phone,” Boehner said.
Kucinich’s resolution, introduced last week, “directs the president to remove the United States armed forces from Libya by not later than the date that is 15 days after the date of the adoption” of the measure. Reps. Michael Capuano (D-Mass.) and Dan Burton (R-Ind.) are co-sponsors of the resolution.
In a statement, Kucinich said he was “disappointed that the president and leadership feel the need to buy even more time to shore up support for the war in Libya. It’s not surprising that some are now wondering if a preliminary vote count on my resolution came out in favor of defending the Constitution.”
Kucinich added: “The House leadership has communicated to me via email that the vote on Libya will be postponed ‘in an effort to compel more information and consultation’ from the administration. I have been asked to provide input for the information which the House will seek from the administration.”
The Ohio Democrat said he looks forward to participating in this process of discovery and, “in the interest of transparency, will make public all document requests.”
Burton said in an interview that he plans to speak to Boehner and House Majority Leader Eric Cantor (R-Va.) about why the resolution was pulled.
“I don’t think we should postpone this. We should have an immediate up or down vote on it. We should have a debate on it this week,” Burton said.
Because the Kucinich proposal relates to the 1973 War Powers Act, it is considered privileged under House rules, meaning Kucinich could force a floor vote even if Democratic and Republican leaders are opposed to doing so. The resolution “ripens” next week, making it possible for Kucinich to bring about a vote when Congress returns from next weekâ€™s recess.
“Congress is not satisfied with the blank check that this administration has written for itself to conduct the Libyan war,” Kucinich said in a statement last week. “Congress has made it clear that the Libyan war has not been authorized as required by the Constitution and the War Powers Act.”
Under the War Powers Act, the president must get approval from Congress within 60 days after ordering US forces into combat. Neither President Barack Obama nor any other president has formally acknowledged being bound by this restriction.
Obama has thrown his support behind a Senate resolution offered by Sens. John McCain (R-Ariz.), Carl Levin (D-Mich.), John Kerry (D-Mass.) and others authorizing the Libya mission. That measure has been referred to the Senate Foreign Relations Committee but has not yet come to a vote.
Jake Sherman contributed to this report.
(c) 2011 Capitol News Company, LLC