{"id":2171,"date":"2011-04-03T20:37:33","date_gmt":"2011-04-04T00:37:33","guid":{"rendered":"https:\/\/thebigpictureandthecloseup.com\/?p=2171"},"modified":"2011-04-27T23:19:54","modified_gmt":"2011-04-28T03:19:54","slug":"speak-inaudibly-and-carry-a-stick-of-indeterminate-size","status":"publish","type":"post","link":"https:\/\/thebigpictureandthecloseup.com\/?p=2171","title":{"rendered":"Speak Inaudibly and Carry a Stick of Indeterminate Size"},"content":{"rendered":"

The Big Picture Home Page<\/a>\u00a0| Previous Big Picture Column<\/a>\u00a0| Next Big Picture Column<\/a><\/p>\n

Speak Inaudibly, And Carry A Stick of Indeterminate Size:<\/h2>\n

Finessing Legality in Libya<\/h2>\n

Published in the Maryland\u00a0Daily Record April 4, 2011\u00a0<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 What, legally speaking, did the Obama Administration do when it committed U.S. forces to the military effort to rein in Colonel Kadafi?\u00a0 If you had to scratch your head over that one, you\u2019re not alone.\u00a0 The Administration has chosen not to provide a legal analysis.<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 On one, very superficial level, we know.\u00a0 That is, the U.S. lent itself to the enforcement of U.N. Security Council Resolutions 1970<\/a> and 1973<\/a>, which together authorized the creation and enforcement of a no-fly zone, and also authorized member states to \u201ctake all necessary measures…\u00a0 to protect civilians and civilian populated areas under threat of attack.\u201d\u00a0 These enactments and their implementation were accompanied, both at the U.N. and the White House, by assertions that these steps do not and will not involve ground forces (and hence have gone forward to date without U.S. \u201cboots on the ground\u201d).\u00a0 After the President\u2019s March 28 address<\/a>, it seems we have a \u201cno-boots\u201d pledge.<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Will the Other Boot Fall?<\/h3>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 As of this writing (March 28), it seems reasonably possible that \u201cboots\u201d may not be required, even to achieve the only resolution that has a chance of protecting civilians long-term, i.e., one that removes Kadafi.\u00a0 But that Resolution language about \u201call necessary measures\u201d is an open door, and one that it seems possible someone may have to walk through.\u00a0 The \u201cnightmare scenario\u201d leading to that necessity is easy to imagine: Kadafi is not dethroned, and continues, despite no-fly, to attack citizenry, and enjoys some degree of success.\u00a0 It then becomes necessary, if other powers wish \u201cto protect civilians … [from] attack,\u201d to finish the job of dethroning Kadafi; these may prove to be the only viable alternatives.<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 The confusion Speaker of the House John Boehner expressed in his March 23 letter to Obama<\/a> is a direct and legitimate consequence.\u00a0 He phrased it this way: \u201cYou have stated that Libyan leader Muammar Qadhafi must go, consistent with U.S. policy goals.\u00a0 But the U.N. resolution the U.S. helped develop and signed onto makes clear that regime change is not part of this mission.\u201d\u00a0 I would rephrase it: \u201cYou commit to a mission that may require regime change, but foreswear pursuing it.\u00a0 How do you reconcile these positions?\u201d<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 History may save Obama from having to answer the question.\u00a0 He is not eager to answer: instead his stance on March 28 has been that we have only been involved in a limited operation, and that our major commitment to it is just about over.\u00a0 If something bigger is required for Kadafi to fall, perhaps it will be up to others to provide it.<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 From the standpoint of the laws, then, his implicit argument is that he wasn\u2019t involved in a war, or just a teeny little one.\u00a0 That will not wash, though, when laid next to the laws on the books.<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Out of Compliance<\/h3>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 <\/a>Two documents theoretically constrain a president\u2019s freedom to do what Obama has done.\u00a0 One is the Constitution, which allows only Congress, not the President to initiate wars, and then only by declaration.\u00a0 The other is the War Powers Resolution.\u00a0 That law requires quick \u201cconsultation\u201d with Congress<\/a>\u00a0when U.S. military forces are deployed, and requires the president to withdraw deployed forces within 60 days unless Congress approves their continued deployment.\u00a0<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 If sending warplanes and Tomahawk missiles to blast Libyan tanks, anti-aircraft batteries, runways, and aircraft to smithereens <\/a>is not an act of war, then Obama did not constitutionally need a declaration.\u00a0 But act of that nature are<\/em> warfare.\u00a0 Obama has yet to exceed his 60 days under the WPR, and he claimed on March 28 to have acted after\u00a0 \u201cconsulting the bipartisan leadership of Congress.\u201d\u00a0 If the second half of this were true, Obama would be compliant with the WPR for the moment.\u00a0 It appears that by this phrase Obama means a March 18 briefing of certain members of Congress.\u00a0 But, as was pointed out immediately<\/a>, this was a briefing at which congressional input was not sought.\u00a0 That is not what is ordinarily meant by consultation.<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 So basically Obama is out of compliance.\u00a0 He has made a calculation to ignore what the written rules say, because history is on his side.\u00a0 Unfortunately, as far as the law goes, that bet is almost certainly right.\u00a0<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Once More With Imperfect War<\/h3>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 As I explained in a series of articles in these pages between 2005 and 2007<\/a>, the congressional monopoly on committing U.S. forces to combat was quickly breached by Supreme Court rulings that countenanced something called \u201cimperfect war,\u201d meaning, essentially, commitment of U.S. armed forces unpreceded by a congressional war declaration.\u00a0 This approach greatly appealed to the Executive, because it allowed the president to claim the deference due his war powers, while freeing him from his dependency upon Congress to authorize their exercise.\u00a0 Thereafter, declared wars \u2013 and congressional say in the matter \u2013 almost vanished from the scene, but we have been \u201cat war\u201d from the standpoint of the presidential prerogative dozens of times.<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 After Vietnam, Congress tried to recapture some of its authority with the WPR.\u00a0 While running for office, Obama had claimed to endorse the view<\/a> that \u201cThe 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.\u201d\u00a0 I warned in this space that I did not see clear signs he was really committed to that view.\u00a0 I said just before the last election<\/a>: \u201c we do not yet have a clear picture of what would happen next if a President Obama were to tell congressional leaders he planned to … invade some country … and they were to express opposition.\u201d\u00a0 Libya seems to bear out those misgivings.<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Not that I wish to minimize the short-term considerations that guided Obama\u2019s course.\u00a0 In the rapidly emerging bloodbath that Kadafi had explicitly promised<\/a>, Obama seemed to face a much more genuine crisis than the threat of phony weapons of mass destruction Bush used to justify Iraq.\u00a0 True consultation might have delayed the intervention too long.<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 A New Obama Doctrine Under Wraps?<\/h3>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 And now, says Obama, it\u2019s already nearly over.\u00a0 That may save Obama from ever having to articulate the legal justification for what he did.\u00a0 We never saw any Office of Legal Counsel memos.[1]\u00a0 But I\u2019d be willing to bet that somewhere in some Department of Justice office, a group of lawyers has put together an Opinion that runs something like this: a) Treaties can lawfully delegate certain otherwise congressional powers to international entities; b) We have by treaty delegated to the Security Council and organizations like NATO power to authorize member states to use force; c) We are a member state; d) Ergo we have delegated to the Security Council or NATO part of congressional powers of approval for us to enter \u201cimperfect\u201d wars, and e) The president can lawfully treat a Security Council or NATO Resolution as sufficient authorization for him to employ military force without further congressional approval.<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 \u00a0If that is the way things are tending, candidly, we could do worse.\u00a0 The community of nations might function as a bit more of a check and balance on Executive military adventurism than Congress.\u00a0 Still, we saw George Bush game the international system in Iraq.\u00a0 And like most Americans, I\u2019m sure, I\u2019d rather keep the checks and balances stateside.<\/p>\n

\n
\n
\n

[1]\u00a0\u00a0\u00a0A search March 27, 2011 at the OLC site<\/a>\u00a0revealed nothing.<\/p>\n

Copyright (c) Jack L. B. Gohn<\/p>\n

The Big Picture Home Page<\/a>\u00a0| Previous Big Picture Column<\/a>\u00a0| Next Big Picture Column<\/a><\/p>\n<\/div>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

So basically Obama is out of compliance. He has made a calculation to ignore what the written rules say, because history is on his side. Unfortunately, as far as the law goes, that bet is almost certainly right.<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[3],"tags":[84,2498,136,323,1478,2499,2497,2503,2492,2500,2501,189,2502,401,1371,1664,2493,2494,2495,2491,2496,434],"class_list":["post-2171","post","type-post","status-publish","format-standard","hentry","category-bigpicture","tag-barack-obama","tag-declaration-of-war","tag-george-w-bush","tag-imperfect-war","tag-iraq","tag-john-boehner","tag-libya","tag-muamar-kadafi","tag-muammar-qadhafi","tag-nato","tag-nato-resolution","tag-office-of-legal-counsel","tag-olc","tag-president-george-w-bush","tag-president-obama","tag-presidential-war-powers","tag-security-council","tag-security-council-resolution-1970","tag-security-council-resolution-1973","tag-speak-softly-and-carry-a-big-stick","tag-tomahawk-missiles","tag-war-powers-resolution"],"_links":{"self":[{"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=\/wp\/v2\/posts\/2171","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=2171"}],"version-history":[{"count":15,"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=\/wp\/v2\/posts\/2171\/revisions"}],"predecessor-version":[{"id":2290,"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=\/wp\/v2\/posts\/2171\/revisions\/2290"}],"wp:attachment":[{"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=2171"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=2171"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=2171"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}