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Sunday, June 26, 2011

THE WAR POWERS ACT AND THE DEFINITION OF "HOSTILITIES"

The U.S. House of Representatives recently refused to pass a resolution supporting the Obama Administration's current military engagement in Libya. Had it done so, along with a similar resolution in the Senate, it would have put Obama in compliance with the 1973 War Powers Act which requires the president to consult with Congress before deploying troops and then seek authorization within sixty days or withdraw the troops.

The exact language of the Act which is supposed to trigger executive compliance for notification, authorization and/or withdrawal of forces is:

"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."

However, the War Powers Act, which was a reaction to the decade long Viet Nam war, has been the subject of controversy ever since its passage over President Nixon's veto. Every president since has questioned the constitutionality of all or parts of the act and none have complied completely with each of the acts provisions. Presidents, unwilling to compromise their constitutional authority as Commander in Chief and Chief Executive to conduct foreign policy have typically "notified" Congress "in accordance with" but not "pursuant to" the Act, language which would start the sixty day time clock.
Presidents Reagan, George H.W. Bush, and Clinton conducted military operations in Grenada, Panama and Kosovo using this procedure without specific authorization from Congress. The provisions of the Act were mooted by specific congressional "resolutions" in support of the first Gulf War (1990), the Afghanistan invasion (2001) and the Iraq war (2003).

The current debate is complicated by several contextual factors. First, the nation is engaged in military actions in Afghanistan, Iraq, Pakistan, and Yemen. The wars in Afghanistan and Iraq have been going on for ten years and eight years respectively. Military involvement in Pakistan in the form of air attacks on Al-Qaida terrorists and the assault on Osama bin-Laden's compound have driven a wedge between the U.S. and Pakistani governments in spite of billions of annual aid to Pakistan, and polls affirm that the nation is "war weary".

Second, the costs of all these operations are enormous and in the face of a serious and persistent recession, adding yet another expensive military engagement without apparent relation to U.S. security interests is hard to justify based solely on humanitarian motives, especially when there are regional actors whose interests are more closely affected who could become more involved. The U.S. costs for Libya alone through June 3rd are $716 million and the projected costs through September 30th are $1.1 billion.

Third, is the political context. The House of Representatives is controlled by the Republican Party, which is generally opposed to the Obama Administration's overall policy agenda and which is currently influenced by the beginning of the 2012 election cycle. This issue just further divides the parties and makes the compromises necessary for doing Congress's essential work more difficult.
Both the facts and the politics seem to be on the side of those claiming that President Obama is in violation of the War Powers Act. This includes both Republicans and Democrats who would have supported the mission if Obama had complied with the required procedures as well as those opposed to the intervention on any grounds.

In response to the uproar, the Obama Administration released a thirty-four page document explaining its
position, which is that the War Powers Act doesn't apply. In providing the document Obama used the same language as his presidential predecessors.

"For these purposes, I have directed these actions, which are in the national security and foreign policy interests of the United States, pursuant to my constitutional authority to conduct U.S. foreign relations and as Commander in Chief and Chief Executive.I am providing this report as part of my efforts to keep the Congress fully informed, consistent with the War Powers Resolution. I appreciate the support of the Congress in this action."

Given the genuine constitutional questions involved, he would have been better served to leave it at that. However he chose to create a report thaat makes arguments which make little sense and has just inflamed the debate.

The essence of the Administration's argument is that the U.S. is not engaged in "hostilities" or "imminent hostilities" because there are no ground troops involved. But the opening of the operation included the launching of hundreds of Tomahawk cruise missiles from both American and British warships. The Administration's report to Congress acknowledges that 25% of over 10,000 individual combat aircraft sorties were flown by American aircraft and the continuing role of the U.S. involves the deployment of numerous ships in the blockade effort, the use of Predator UAVs, and the provision of the bulk of intelligence and air refueling.

Humanitarian goals, United Nations and NATO commitments aside, the U.S. is clearly engaged in "hostilities" in Libya and will be for the foreseeable future. The President has needlessly sacrificed credibility by unnecessarily constructing a false description of the operation. Latest polls show that Americans disapprove of our involvement by 46% to 39% (Gallup: 6/22). Only Democrats, demonstrating their continued loyalty to Obama support the involvement, 54% to 35%. Republicans oppose it 47% to 39% and perhaps more importantly, Independents oppose it 52% to 31%.

Thus the U.S. is engaged in another civil war whose outcome might be influenced but not determined by its involvement. The best case scenario for Obama and the nation is for Ghadaffi to step down and perhaps flee to Syria where another vicious dictator is killing his own people but whose relationships with Lebanon and Iran make humanitarian goals less important to Western leaders. A more credible outcome would be for Ghadaffi to be "accidentally killed" in a NATO air strike since incredibly the coalition political leaders prefer to drag on the conflict and accept civilian casualties rather than eliminating a "Muslim leader" as matter of policy and settling the issue.






 
 
 

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