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We Just Stopped Congress From Giving the Power of War to Presidents


By davidswanson - Posted on 06 July 2011

"What's the point?"  "We never win!"  "Why bother trying?"
 
This time we won.

This is the point.  Congressman Buck McKeon and Senator John McCain proposed to give Obama and all future presidents dramatically expanded powers to launch wars.  They wanted to do so as part of the same "Defense Authorization Act" in which the House was restricting Obama's warmaking in Libya. 

Activist groups like RootsAction pushed back.  A great deal of support was generated for an amendment to strip the offending language out in the House, but the amendment failed.  RootsAction, and other organizations, demanded that the Senate remove it:

At the same time, the House rejected amendments that would have limited or ended U.S. warfare in Afghanistan, and rejected an amendment that would have stripped Section 1034 from the bill.  That section is perhaps the most fundamental change to the structure of our federal government that has ever appeared likely to pass through Congress, as it would effectively give the power to make war to all future presidents.  We must demand that the Senate remove Section 1034.

The Senate is now proposing a bill that does not include that section.  Remain ever vigilant, but if you can use a pat on the back then give yourself one now.  You just helped stop the most dangerous piece of legislation we've seen in Congress, at least in a very long time.  In what will come as a shock to the Tea Party, McKeon and McCain planned to crown President Barack Obama King of America.

Here's what noted Republican Abraham Lincoln once wrote on the subject:

"Allow the President to invade a neighboring nation, whenever he shall deem it necessary to repel an invasion, and you allow him to do so, whenever he may choose to say he deems it necessary for such purpose -- and you allow him to make war at pleasure. Study to see if you can fix any limit to his power in this respect, after you have given him so much as you propose. If, today, he should choose to say he thinks it necessary to invade Canada, to prevent the British from invading us, how could you stop him? You may say to him, "I see no probability of the British invading us" but he will say to you "be silent; I see it, if you don't." The provision of the Constitution giving the war-making power to Congress, was dictated, as I understand it, by the following reasons: Kings had always been involving and impoverishing their people in wars, pretending generally, if not always, that the good of the people was the object. This, our Convention understood to be the most oppressive of all Kingly oppressions; and they resolved to so frame the Constitution that no one man should hold the power of bringing this oppression upon us."

But what if you can create laws that violate the Constitution, and then obey those laws, the Constitution be damned? And what if being a Republican today means striving to expand presidential power as far as possible -- in fact beyond the power ever held by any king? And what if being a Democrat today means the very same thing?

Then you get something like H.R.1540, the National Defense Authorization Act for Fiscal Year 2012, and in particular Section 1034:

"Congress affirms that--
(1) the United States is engaged in an armed conflict with al-Qaeda, the Taliban, and associated forces and that those entities continue to pose a threat to the United States and its citizens, both domestically and abroad;
(2) the President has the authority to use all necessary and appropriate force during the current armed conflict with al-Qaeda, the Taliban, and associated forces pursuant to the Authorization for Use of Military Force (Public Law 107-40; 50 U.S.C. 1541 note);
(3) the current armed conflict includes nations, organization, and persons who--
(A) are part of, or are substantially supporting, al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners; or
(B) have engaged in hostilities or have directly supported hostilities in aid of a nation, organization, or person described in subparagraph (A); and
(4) the President's authority pursuant to the Authorization for Use of Military Force (Public Law 107-40; 50 U.S.C. 1541 note) includes the authority to detain belligerents, including persons described in paragraph (3), until the termination of hostilities."

Study to see if you can fix any limit to his power in this respect, after you have given him so much as you propose. This language would have put into law the perilous policies now acted upon outside of the law. President Obama's war in Libya is absolutely unconstitutional. But with this language on the books, Obama and every future president would have been able to legally, albeit unconstitutionally, justify launching almost any war at pleasure.  They would have just needed to claim an association between an enemy nation or organization or individual and al Qaeda or the Taliban.

This new "legal" language would, in many cases, have gotten presidents around the restrictions of the War Powers Resolution, which does not permit unauthorized wars when the United States has not been attacked, which requires the reporting of information to Congress that, in the case of Libya, has not been reported, and which only permits wars -- when it does permit wars -- for 60 or 90 days, deadlines that have now been reached in Libya. According to the War Powers Resolution:

"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."

In addition:

"The President in every possible instance shall consult with Congress before introducing United States Armed Forces into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, and after every such introduction shall consult regularly with the Congress until United States Armed Forces are no longer engaged in hostilities or have been removed from such situations."

In the case of Libya, Obama carefully avoided any consultation with Congress but took the time to consult with just about everybody else around the world.

The War Powers Resolution also requires that:

"[T]he President shall submit within 48 hours to the Speaker of the House of Representatives and to the President pro tempore of the Senate a report, in writing, setting forth --
(A) the circumstances necessitating the introduction of United States Armed Forces;
(B) the constitutional and legislative authority under which such introduction took place; and
(C) the estimated scope and duration of the hostilities or involvement."

Obama's report to Congress on Libya fell short of A and B and did not even attempt C.

When it comes to the now-surpassed 60-day-limit, the law is clear:

"Within sixty calendar days after a report is submitted or is required to be submitted pursuant to section 1543 (a)(1) of this title, whichever is earlier, the President shall terminate any use of United States Armed Forces with respect to which such report was submitted (or required to be submitted), unless the Congress
(1) has declared war or has enacted a specific authorization for such use of United States Armed Forces,
(2) has extended by law such sixty-day period, or
(3) is physically unable to meet as a result of an armed attack upon the United States."

The War Powers Act, in allowing 60-day unconstitutional wars is itself, of course, a step back from the Constitution as its authors, most readers, and President Lincoln have understood it. The Constitution devotes Article I to bestowing the vast majority of governmental power on Congress, including here:

"The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States; . . . . To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations; To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years; To provide and maintain a Navy; To make Rules for the Government and Regulation of the land and naval Forces; To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress; To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings; And To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."

In tiny little Article II, the U.S. Constitution establishes the duties of the president:

"[H]e shall take care that the laws be faithfully executed."

What else shall he do?

"The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States."

Let's go to constitutional scholar, Barack Hussein Obama for an explanation of this supreme law of the land:

"The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation." -- candidate Barack Obama, December, 2007.

"No more ignoring the law when it's inconvenient. That is not who we are . . . . We will again set an example for the world that the law is not subject to the whims of stubborn rulers." -- candidate Barack Obama, August 1, 2007.

That was then.

Now Obama's John Yoo, a guy by the name of Harold Koh, is deployed to inform Congress, along with his partner Senator John Kerry, that the War Powers Resolution does not apply to drone wars, blowing up people's houses from above, since that is not "hostilities."

We have a long way to go.

But Harold Koh would not have to make a fool of himself before Congressional committees if Congress had passed Section 1034.  In any future war with a claimed tie to al Qaeda (on the opposing side, not the "good" side as in Libya) Koh or his successor would have been able to point to a law on the books and read it as it was written.

We took that away.

Onward!

Tags

Excellent article! I'm sending it to everyone I know who is still capable of understanding how crucial this is to our survival. Thanks David, for all you are doing to make our world a better, safer, saner place.
In deep gratitude,
Bodhi Goforth
Eugene, OR USA

Informed Activist

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