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Obama and War Powers . . .and Joe Biden

My dear friend Steve Bainbridge wonders if John Yoo is smiling. He posts:

Remember when liberals blasted John Yoo for his position on the so-called unitary executive? Well, he must be feeling vindicated when he hears what Hillary Clinton just told Congress:

The White House would forge ahead with military action in Libya even if Congress passed a resolution constraining the mission, Secretary of State Hillary Clinton said during a classified briefing to House members Wednesday afternoon.

Clinton was responding to a question from Rep. Brad Sherman (D-CA) about the administration’s response to any effort by Congress to exercise its war powers, according to a senior Republican lawmaker who attended the briefing.

The answer surprised many in the room because Clinton plainly admitted the administration would ignore any and all attempts by Congress to shackle President Obama’s power as commander in chief to make military and wartime decisions. In doing so, he would follow a long line of Presidents who have ignored the act since its passage, deeming it an unconstitutional encroachment on executive power.

Clinton’s staking out a pretty aggressive position on the scope of the President’s war powers. It’s especially aggressive considering what her boss said back when he was still a mere junior Senator from Illinois:

Barack Obama: Congress decides deployment level & duration, not president

Q: Can the president disregard a congressional statute limiting the deployment of troops–either by capping the number of troops, or by setting minimum home-stays between deployments?

A: No, the President does not have that power. To date, several Congresses have imposed limitations on the number of US troops deployed in a given situation. As President, I will not assert a constitutional authority to deploy troops in a manner contrary to an express limit imposed by Congress and adopted into law.

Barack Obama: No action against Iran without Congressional authorization

Q: In what circumstances would the president have constitutional authority to bomb Iran without seeking a use-of-force authorization from Congress?

A: 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. In instances of self-defense, the President would be within his constitutional authority to act before advising Congress or seeking its consent. History has shown us time and again, however, that military action is most successful when it is authorized and supported by the Legislative branch. It is always preferable to have the informed consent of Congress prior to any military action. As for the specific question about bombing suspected nuclear sites, I recently introduced S.J.Res.23, which states in part that “any offensive military action taken by the United States against Iran must be explicitly authorized by Congress.”

To repeat, Senator Obama’s position was clear: “I will not assert a constitutional authority to deploy troops in a manner contrary to an express limit imposed by Congress and adopted into law.” But isn’t that exactly the authority his Secretary of State just asserted?

It’s interesting how even a formerly stalwart Obama supporter like Andrew Sullivan is starting to realize what we’re dealing with in Barack Obama:

We are governed by an executive that goes to war in secret and at will, openly contemptuous of the democratic process and even minimal transparency. and when you realize that that executive actually campaigned against this kind of secretive, dictatorial presidency, you realize how this has become systemic, and the anti-democratic rot is deep.

I recently had occasion to comment on Obama’s earlier comments regarding Iran over at PolitiFact.com:

In a March 21, 2011, letter to congressional leaders, Obama wrote that “as part of the multilateral response authorized under U.N. Security Council Resolution 1973, U.S. military forces, under the command of Commander, U.S. Africa Command, began a series of strikes against air defense systems and military airfields for the purposes of preparing a no-fly zone. These strikes will be limited in their nature, duration, and scope. Their purpose is to support an international coalition as it takes all necessary measures to enforce the terms of U.N. Security Council Resolution 1973. These limited U.S. actions will set the stage for further action by other coalition partners.”

Obama went on to say that the U.N. resolution authorized “all necessary measures to protect civilians and civilian populated areas under threat of attack in Libya. … (Libyan leader Moammar Gadhafi’s) continued attacks and threats against civilians and civilian populated areas are of grave concern to neighboring Arab nations and, as expressly stated in U.N. Security Council Resolution 1973, constitute a threat to the region and to international peace and security. His illegitimate use of force not only is causing the deaths of substantial numbers of civilians among his own people, but also is forcing many others to flee to neighboring countries, thereby destabilizing the peace and security of the region. Left unaddressed, the growing instability in Libya could ignite wider instability in the Middle East, with dangerous consequences to the national security interests of the United States.”

So, how well does this match up with Obama’s 2007 statement that “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”?

We think the question boils down to whether the actions being taken in Libya “involve stopping an actual or imminent threat” to the United States.

Anthony Clark Arend, a professor of government and foreign service at Georgetown University, said he doesn’t perceive a strong argument that Libya represents “an actual or imminent threat to the nation.” To him, that phrase suggests “a circumstance where the other state was engaging in or was about to engage in something tantamount to an armed attack against the United States (or, presumably, its allies). In the Libyan case, there is no such threat — actual or imminent — to the United States or its allies.”

In short, Obama clearly painted himself into a corner with his remarks in 2007.  His current actions clearly contradict what he said in 2007.

That having been said, I believe that the Constitutional authority of the president to use military force without Congressional authorization does extend beyond circumstances of “actual or imminent threat.” Under Article II of the Constitution, the President is the “commander-in-chief” of the military. I would argue that this means that the president has the authority to use force in short, quick operations that are undertaken in the interests of national or international security. In the past, presidents have many times used force for such operations that involve a minimal amount of force and are of relatively limited duration. In most of those occasions, Congress has acquiesced in the presidents’ actions.  Initial, US military involvement in Libya would seem to fall into this category. Of course, if the conflict becomes extended, if ground troops were ito be ntroduced, and force levels increased, then Congressional approval would, in my view, be needed.

In 1994 when I testified before the Senate Foreign Relations Committee, I made a similar claim– that the president could use force in such short actions with minimal troop involvement. Interestingly enough, then-Senator Joe Biden begged to differ:

Senator BIDEN. Yes. If I can be the devil’s advocate for a moment, Dr. Arend, I have great difficulty with my students when they suggest to me that the ability of the President to use force absent congressional authorization rests not upon a principle that is akin to the need for immediate response to protect certain interests, but is based upon a principle of the size of force used. You have made a distinction that I find difficult to justify constitutionally as a lawyer, and that is that in Somalia, where you used U.S. ground forces, or in the Gulf where you use a significant number of U.S. ground forces, congressional authorization would be required, but a use of airpower, for example-you did not say this, but the use of airpower that entailed the total commitment of, say, only several hundred American troops in combat, gives the President some authority, inherent authority that rests upon the volume of force used and the nature of force used as opposed to the circumstance under which the force was used.
Can you explain what you meant for me, so I can use it in class on Saturday?
Dr. AREND. Absolutely. I think what I was implying there, when I was talking about the nature of forces used, really relates a little bit to what you and Professor Stromseth were talking about, and that is the idea of what kind of practice we have seen. She cited Justice Jackson’s steel seizure case. I would cite Justice Frankfurter talking about practice created a gloss on the Constitution, on the nature of Executive privilege [sic]or Executive power. I would contend that what we have seen in practice is clearly not the acceptance that the President can undertake a Korea without congressional authorization or the Gulf war or Somalia, but rather in certain very discrete types of cases, such as the use of force to rescue nationals, such as the use of force to respond to an immediate terrorist threat, or such as the use of force to respond to pirates, or whatever, that there has been congressional acquiescence or congressional acceptance of that type of force.

Senator BIDEN. Let me stop you.

Dr. AREND. Sure.

Senator BIDEN. Congressional acceptance is a hell of a rule to use, because Congress, for the reasons my friend from Wisconsin has cited, has found that it is very useful not to take a stand. During the Gulf war, I was the one insisting that there be a requirement that the President come before us and seek authorization. Some of my colleagues came up to me who shared my view on the Constitution and did not want that done, because then they had to walk the line. They had to take a stand. So congressional acquiescence is, I would argue, is one God-awful way to determine what the proper authority vested under our doctrine of separation of powers is between the executive and legislative branch, and when you talk about-when you give the examples you have given as to the circumstances in which it has been accepted practice to acquiesce in the use of force by the President, they have been grounded in almost every instance on the notion that a President has an inherent right in circumstances where there is an immediate danger to American citizens, troops, or property, to re- spond. The debates-and I have read all of them. There is not many of them. The debates that took place and the discussions and the propaganda put out called the Federalist Papers, in order to con- vince State legislative bodies to sign on, the one thing that the Fed- eralists and anti-Federalists agreed to, Madison and Hamilton agreed on was that this notion of changing the Nation’s footing from a state of lieace to a state of war was one that ultimately had to rest with the people. I find it interesting that those who I characterize in my Georgetown Law Journal article as the monarchist view have no difficulty sustaining the position that the treaty power is so important that the President and the Congress-that the-Congress-that the Sen- ate has in effect a veto. They must approve a treaty. If they do not, it is vetoed. It is kind of a little bit like, if I could be a bit facetious, Chadha in reverse. It is like a one-House veto, and we need that act. We need that act. Also, the other power that is shared at the Executive level, at the Federal level, the appointment power, the power to appoint people to the court or a high office, is required. In effect, the Congress-the Senate in particular has a veto power, and I find it incomprehensible that the founders would sit down and say, you know, these two things are so important that we are going to insist that the Congress-in this case, one body- has an obligation to consider what the President is proposing but will ultimately dispose one way or the other. If it does not affirmatively act, the folks do not get there. They do not get into court, they do not have a treaty, yet when it comes to changing the state of a nation’s status relative to another in war and peace there the President can act unilaterally, and the only- the only check on his ability to do that relates to the power of the purse, when ultimately the power of the purse, notwithstanding what Senator Byrd-said, I would humbly suggest, never works, because as Commander in Chief you cannot, under the power of the purse, it seems to me, say, unless you eliminate all of the ammunition, all of the fuel, all of the everything, you cannot say to the Commander in Chief, by the way, bring those boys home.
We cut off any future funds, but if he wants to take all of those forces from NATO, all the forces from the rest of around the world, use all the gasoline, all the ammunition, all the bullets, he wants to continue that operation, he can do it. So the chairman is being kind by letting me go over. My point is, would any one of you please comment on the distinction between the nature of the circumstance in which force is interjected and the size of the force? What is dispositive of what authority rests with the President?
Dr. AREND. Can I just respond in terms of, specifically, the question, because I think it is a very critical issue, and there is a difference, I think, between using certain forces and committing the nation to war. What I would suggest is this. The traditional vision of peacekeeping as developed under the U.N. system after the Charter was concluded was that peacekeeping involved the interposition of a force in an area of hostilities, or if the hostilities had ended with the consent of all the parties. The forces were only authorized to use force in their own self-defense. They were buffers. They were put in there to keep the various belligerents apart. Under that kind of peacekeeping, I do not believe that the President would require the consent of Congress, that kind of peacekeeping operation. Traditionally, the United States was not even involved in that, because they used Fijians and Koreans and Scandinavians, though if the United States did choose to get involved in that kind of peacekeeping, I do not think the consent of the Congress would be involved would be required.
However, the kind of peacekeeping in which the United States has been involved-that is, Somalia-has not been that kind. We have gone in where there has not been consent, where there have been belligerent factions which did not want us there, and we have had to establish the peace.
Senator BIDEN. If there is a peace agreement in Bosnia a piece of paper signed by the three parties, and the President of the United States says, we are going to send 50,000 American forces into a circumstance in which no one, including someone like me, who argues for an aggressive policy in Bosnia, could deny would be the single-most dangerous circumstance they could be placed, more dangerous than the offensive action, I would argue, in the Gulf, are you suggesting there is no need-
Dr. AREND. I would say congressional authority would be required there as well, because, even though it might have been under the guise of traditional peacekeeping, the traditional peace- keeping was a small thing. That would clearly, in my opinion-and private things get much worse, and I think under those cir- cumstances you would need congressional consent.


So . . .it looks like the Joe Biden of 1994 would not support the authority of President Obama to use force against Libya without Congressional authorization.

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Welcome! Who am I?

Anthony Clark Arend is Professor of Government and Foreign Service at Georgetown University and the Director of the Master of Science in Foreign Service in the Walsh School of Foreign Service.

Commentary and analysis at the intersection of international law and politics.