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Is That Even Legal?

By davidswanson - Posted on 02 June 2011

If the U.S. Constitution says one thing, a treaty ratified by the United States says another, a law passed by Congress yet another, and another law passed by Congress another thing still, while a signing statement radically changes that last law but itself differs with an executive order, all of which statements of law conflict with a number of memos drafted by the Office of Legal Council (some secret and some leaked), but a President has announced that the law is something completely different from all of this, and in practice the government defies all of the above including the presidential announcement . . . in such a case, the obvious but possibly pointless question arises: what's legal?

The above theoretical example of legal confusion sounds extreme, but it is not far off the actual situation with regard to some of our most important public policies. Take the example of U.S. warmaking in Libya. Is that legal?

The U.S. Constitution says Congress must decide where and when to make war. Congress has not declared a war since 1941. Since that date Congress has put up a gradually diminishing pretense of involvement. In the case of Libya, Congress played no role whatsoever in launching the war. Is the law what the Constitution says, how the Constitution was interpreted for the first two-thirds of our national history, what presidents have gotten away with in recent decades, or what a president can get away with today? Wait, don't answer that!

The Constitution also says that ratified treaties are the supreme law of the land. Does that include treaties passed almost a century ago, largely forgotten, and almost never discussed on television? Does it include only treaties that have been duplicated in U.S. statutes? Does it include only treaties the government is inclined to comply with? In this regard, we might wish to recall that theoretically the Kellogg Briand Pact is still one of our many supreme laws of the land. In 1928, the U.S. Senate ratified this treaty, which states:

"The High Contracting Parties solemly declare in the names of their respective peoples that they condemn recourse to war for the solution of international controversies, and renounce it, as an instrument of national policy in their relations with one another."

The Senate tacked on a couple of modifications to the treaty, a practice of debatable legality itself. One reservation the Senate added was for cases of defense. The other was to clarify that the United States was not obliged to enforce the treaty by going to war against its violators. Since nobody has even claimed that Libya attacked the United States, and since the United States voluntarily went to war, the exceptions do not seem relevant. War is illegal. Period. At least if we go by Kellogg Briand. And why not? Aren't ancient laws recalled and put to use when we need to expand corporate power or discriminate against gays or advance any other political agenda? So, why not Kellogg Briand? Because it's been violated? What kind of reason is that?

The United Nations Charter, too, makes war illegal, with very limited exceptions that do not seem to apply. But the United Nations passed a resolution that the U.S. Justice Department, in a leaked/published memo, relies on heavily to justify the war. Does that resolution make the war in some way legal, even if the memo isn't and the Constitution is still violated? And what if the war, in various ways, violates the resolution? The resolution was for a humanitarian intervention, a no fly zone, a cease fire, an arms embargo, and a ban on foreign ground troops. It was immediately used to bomb civilians, introduce arms, and employ foreign ground troops, not to mention drone bombings and an apparent assassination attempt -- both practices of highly dubious legality. Is a war legalized by a resolution even if it violates the resolution, and even if it violates numerous other laws in doing so? Or is it internationally legalized while remaining domestically unconstitutional?

A U.S. law passed in 1973, the War Powers Act, if you read what it actually says, would have applied only if Libya had attacked the United States, which no one has ever claimed. But everyone pretended this law applied anyway. The War Powers Resolution requires that the President report information to Congress within 48 hours of launching a war, which Obama did -- except that he didn't include most of the information he was required to report. The War Powers Resolution also puts a 60-day limit on unconstitutional war, and that clock has expired. So is the war illegal because it violates both the Constitution and this weaker law? Or is it legal because there's been such a pretense of complying with the law, to the extent of sending Congress a polite note when the 60-day clock ran out? And is this law somewhat less legal than other laws because it was passed over a veto and because some, but not all, presidents since its passage have declared that they object to it and hold it to be unconstitutionally strong -- as opposed to being unconstitutionally weak, as the law appears to be?

Last week, the House of Misrepresentatives passed numerous amendments to the "Defense Authorization Act of 2012." One amendment made clear that passage of the bill did not authorize war in Libya. (Arguably, the failure of Congress to fund any war in Libya also makes the war -- you guessed it -- illegal.) Another amendment prohibited the use of U.S. ground troops in Libya (unless employed through a department other than "Defense"). But another amendment required that, upon completion of the war, the U.S. military dig up and bring home the bones of U.S. sailors buried in Tripoli during an earlier war in 1804 (which Congress did not declare but authorized). How exactly is that going to happen unless the U.S. military gains control of Tripoli? And what is accomplished by refusing to authorize a war that is already underway, with another 90 days just announced by NATO, and with not a glimmer of a threat of holding anyone accountable for it? Is the idea to make a war "illegal" but watch it roll along?

Another section of the same bill (an amendment to strip it failed to pass) effectively gives presidents the power to make wars. This section (#1034) conflicts with the War Powers Act and the Constitution. It might also conflict with a congressional resolution ending or prohibiting a specific war. The President claims not to want this power, and a generous interpretation of a statement from his administration holds that he has threatened to veto the bill over it. While a veto strikes me as extremely unlikely, a signing statement seems somewhat more likely, if this section gets through the Senate. Here's a situation in which the fundamental question of who has the power of war could have several answers. The Constitution will continue to say Congress, while the War Powers Act says mostly Congress, but this new legislation says presidents, and a signing statement says something different.

Why would President Obama signing-statement away more presidential power? Well, he probably won't. But think about why he avoided asking Congress to declare or authorize war in the first place, when it probably would have. And why did he avoid asking Congress to declare or authorize war within 60 days? Why does he insist that the war is fought by NATO, rather than the United States, even though NATO and its role in the war would not exist without the United States? The goal seems to be expanding presidential power. NATO answers to the president but its abuses, as in Afghanistan, cannot be investigated by Congress. Asking Congress to play a role, even if it plays the desired one, means having to ask Congress again the next time. And allowing Congress to legislate that Congress has no role would mean that theoretically Congress could unlegislate that again. So, Obama could object to Congress having the gall to believe itself empowered to crown him king.

We could end up with a war illegal under the Constitution, legal and illegal under laws and treaties depending which we choose to consult, and illegal or legal under a signing statement depending how we try to make sense of it, but legal under the Justice Department's memos. What's legal?

A resolution to end the U.S. Libya war, HCR 51, will have to be voted on in the House by the week after next at the latest. If the vote is not held, in violation of the law, or if it is held and passes (and then passes the Senate too), will the war be thereby made even more illegal than it was, or illegal for the first time? What if the "Defense Authorization Act" passes the Senate and is signed into law with Section 1034 intact before the House holds its vote on ending the Libya war, or after? Can the crime of having violated the War Powers Act be retroactively treated to immunity? Can the same Congress legislatively and unwittingly deprive itself of the power to end a war it tries to end? What if Congress, frustrated in its effort to vote the war over, votes to ban the use of any dollars to fund the war? Then (and only then?) would continuation of the war be truly illegal? And what if a new memo or presidential decree in the meantime claimed the right to fund the war by other means, Iran-Contra-style or otherwise?

Or what if all measures went against the war's legality? What if Section 1034 is rejected by the Senate or the bill vetoed, both houses vote to end the war, both houses vote to defund the war, the United Nations declares the war illegal, and so forth, but the war continues? Can a war be illegal and roll right along, like warrentless spying, procedure-free imprisonment, or assassination squads?

The White House/Pentagon is planning a secret briefing for Congress on the Libya War. Those who attend should be aware that the war in Libya appears to be a crime and that failure to report crimes that one witnesses is a felony. In this situation, can a Congress member be prosecuted both for revealing the contents of the meeting and for not doing so?

The only thing that seems clear here is that Thomas Paine's notion of the law as king in this country isn't holding up very well. Obviously the law is only king if we're clear on what a law is and our government obeys it. If a law is any bill freely passed by Congress and signed or passed over a veto, provided the courts do not reject it as unconstitutional, and if the highest law is the Constitution and our treaties, then clarity might be possible. But then executive decrees and orders and lawless claims of secrecy and immunity would not be laws, signing statements would not be laws, and blatantly unconstitutional laws would not be laws. Persuasive arguments in secret meetings, and the whole regime of threats and bribes that the White House uses to manipulate the Congress would not be part of lawmaking.

Getting from where we are to there could be tricky. The Constitution itself proposes a way to do it that does not seem applicable. The tool that the Constitution provides the Congress is called impeachment, but obviously that cannot be discussed in this situation, since President Obama is not known to have been having sex with anyone.

Informed Activist

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