THE WAR POWERS RESOLUTION

Transcription

1 60th OPLOW Course Army JAG Legal Center & School August 8, 2013 THE WAR POWERS RESOLUTION AND MILITARY OPERATIONS Prof. Robert F. Turner Center for National Security Law UVA School of Law

2 Three Key Issues 1. How are powers related to war allocated by the Constitution?

3 Three Key Issues 1. How are powers related to war allocated by the Constitution? 2. Did the 2011 U.S. involvement in Libya violate the 1973 War Powers Resolution?

4 Three Key Issues 1. How are powers related to war allocated by the Constitution? 2. Did the 2011 U.S. involvement in Libya violate the 1973 War Powers Resolution? 3. If so, does it matter?

5 Breaking the Code on the Separation of Foreign Affairs Powers The executive power shall be vested in a President of the United States of America.... U.S. Const. Art. II, Sec. 1

6 Rep. Madison on the Meaning of the Executive Power Clause (June 1789) [T]he Executive power being in general terms vested in the President, all powers of an Executive nature, not particularly taken away must belong to that department. letter to Edmund Pendleton, 21 June 1789, 5 Writings of James Madison n.

7 Thomas Jefferson Memorandum to President Washington (April 24, 1790) The Constitution.... has declared that the Executive powers shall be vested in the President, submitting special articles of it to a negative by the Senate....

8 Thomas Jefferson Memorandum to President Washington (April 1790) The transaction of business with foreign nations is executive altogether;... except as to such portions of it as are specially submitted to the Senate. Exceptions are to be construed strictly....

9 Washington s Diary April 27, 1790 Madison and Jay agreed with Jefferson that the Senate had no Constitutional right to interfere in foreign affairs beyond narrow negatives over treaties and appointments.

10 Alexander Hamilton First Pacificus Letter (1793) The general doctrine of our Constitution... is that the executive power of the nation is vested in the President; subject only to the exceptions and qualifications which are expressed in the instrument....

11 Alexander Hamilton First Pacificus Letter (1793) It deserves to be remarked, that as the participation of the Senate in the making of treaties, and the power of the Legislature to declare war, are exceptions out of the general executive power vested in the President, they are to be construed strictly, and ought to be extended no further than is essential to their execution.

12 Chief Justice John Marshall Marbury v. Madison (1803) By the constitution of the United States, the President is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience.... The subjects are political. They respect the nation, not individual rights, and being intrusted to the executive, the decision of the executive is conclusive. - 5 U.S. (1 Cranch.) 137, 165 (1803).

13 Chief Justice John Marshall Marbury v. Madison (1803) The application of this remark will be perceived by adverting to the act of congress for establishing the department of foreign affairs. This officer, as his duties were prescribed by that act, is to conform precisely to the will of the president.... The acts of such an officer, as an officer, can never be examinable by the courts. -Marbury v. Madison (Marshall, C.J.)

14 Prof. Quincy Wright on the Content of Executive Power [W]hen the constitutional convention gave executive power to the President, the foreign relations power was the essential element in the grant, but they carefully protected this power from abuse by provisions for senatorial or congressional veto. The Control of American Foreign Relations 147 (1922)

15 Professor Louis Henkin on Executive Power The executive power was not defined because it was well understood by the Framers raised on Locke, Montesquieu and Blackstone. Foreign Affairs and the Constitution 43 (1972)

16 All three of these writers argued that war and foreign policy (what Locke described as war, peace, leagues, and alliances ) must be entrusted to the executive. Professor Louis Henkin on Executive Power The executive power was not defined because it was well understood by the Framers raised on Locke, Montesquieu and Blackstone. Foreign Affairs and the Constitution 43 (1972)

17 SFRC Chairman J. William Fulbright on Executive Preeminence in Foreign Policy (1959) The pre-eminent responsibility of the President for the formulation and conduct of American foreign policy is clear and unalterable. He has, as Alexander Hamilton defined it, all powers in international affairs which the Constitution does not vest elsewhere in clear terms.

18 SFRC Chairman J. William Fulbright on Executive Preeminence in Foreign Policy (1959) The pre-eminent responsibility of the President for the formulation and conduct of American foreign policy is clear and unalterable. He has, as Alexander Hamilton defined it, all powers in international The President affairs which the Constitution formulated does not as vest well as elsewhere conducted in clear terms. foreign policy.

19 The Constitutional Convention

20 Constitutional Convention August 17, 1787 Madison and Gerry moved to strike make War and give Congress instead the more limited power to declare War... ; leaving the Executive the power to repel sudden attacks. 2 Max Farrand, Records of the Federal Convention 318.

21 Constitutional Convention August 17, 1787 When Rufus King noted that make War might be understood to conduct it, which was an Executive function, the final vote was 8-1 for Madison s amendment. 2 Max Farrand, Records of the Federal Convention 319 n.

22 Force Short of War Since 1801 American presidents have sent military forces into harm s way more than 200 times, and Congress has rarely complained (until recently).

23 President Force Jefferson Short of sent War twothirds of the American Navy half-way around the known Since 1801 American world with instructions to sink presidents have sent and burn ships of the Barbary military forces into harm s Pirates, and didn t even way more than 200 times, formally inform Congress for and more Congress than six months. has seldom even complained.

24 Force Short of War United States v. Verdugo-Uriquidez 494 U.S. 259, 273 (1990). The United States frequently employs Armed Forces outside this country over 200 times in our history for the protection of American citizens or national security.

25 The War Power of Congress The scholarly debate too often focuses upon the meaning of the term war. A better approach may be to begin with this observation: Article I, Sec. 8, of the Constitution gives Congress not the war power but the power to Declare War, which was a term of art from the Law of Nations.

26 The War Power of Congress The term of art Declaration of War was well known to the Founding Fathers, who were well read on the Law of Nations Grotius De Jure Belli ac Pacis was the second most popular lawbook in Colonial Virginia private libraries. As an exception to the President s Executive powers, the power to declare war was expected to be construed narrowly.

27 The Power of Congress to declare War Is it an anachronism today?

28 Alberico Gentili on Declarations of War (1620) [W]hen war is undertaken for the purpose of necessary defence, the declaration is not at all required. 2 Gentili, De Jure Belli Libri Tres 140 (1620 [1933 ed.]).

29 Hugo Grotius on Declarations of War(1620) [N]o declaration [of War] is required when one is repelling an invasion, or seeking to punish the actual author of some crime. Grotius, De Jure Belli ac Pacis, bk. III, Ch. 3

30 Alberico Gentili on Is the Power to declare War an Anachronism Today? Declarations of War [W]hen war is undertaken for the Congress shall have the Power.. purpose of necessary defence, the. declaration is not at all required. To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; Gentili, De Jure Belli Libri Tres 140 (1620 [1933 ed.]).

31 Alberico Letters of Gentili Marque and IS THE POWER TO DECLARE on Reprisal were outlawed by the Declaration WAR Declarations of AN Paris ANACHRONISM in 1856 of and War are TODAY? now an anachronism. [W]hen war is undertaken for the purpose of necessary defence, the declaration Congress is shall not at have all required. the Power... To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; Gentili, De Jure Belli Libri Tres 140 (1620 [1933 ed.]).

32 Alberico Letters of Gentili Marque and IS THE POWER TO DECLARE on Reprisal were outlawed by Pact of Paris in WAR Declarations 1856 AN ANACHRONISM and are now of an War TODAY? anachronism. [W]hen war is undertaken for the purpose of necessary defence, the For declaration Congress a recent debate is shall not at have all required. the Power.. on. the modern content of the power to To grant declare Letters of War, grant Letters of Marque and and Reprisal, and make Reprisal, Rules see: concerning 5 J. Captures on Nat l Sec. L. & Pol. Land and Water; Gentili, De Jure Belli Libri Tres 140 (1620 [1933 ed.]). 393 (2012).

33 The type of War associated with formal Declarations IS Alberico of War was THE POWER Gentili outlawed TO DECLARE on by Kellogg-Briand and the UN Charter. Is WAR Declarations AN ANACHRONISM of War TODAY? that part of Clause 11 now an anachronism Article I, Section as well? 8, Clause 11 of t reads: [W]hen war is undertaken for the purpose of necessary defence, the declaration Congress is not shall at have all required. the Power.. 2 Gentili, De Jure Belli Libri Tres 140 (1620 [1933 ed.]).. To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;....

34 The type of War associated with formal Declarations IS Alberico of War was THE POWER Gentili outlawed TO DECLARE on by Kellogg-Briand and the UN Charter. Is WAR Declarations AN ANACHRONISM of War TODAY? that part of Clause 11 now an anachronism Article I, Section as well? 8, Clause 11 of t reads: [W]hen war is undertaken for the purpose No of necessary country has defence, formally the declaration Congress issued shall not a Declaration at have all the required. Power of... 2 Gentili, De Jure Belli Libri Tres 140 (1620 [1933 ed.]). To declare War War, since grant the Letters UN Charter of Marque entered and Reprisal, into force and make in Rules concerning Captures on Land and Water;....

35 This Does NOT Mean Congress Has No Role in War The Commander-in-Chief Power is a totally hollow grant of authority until Congress: Raise[s] and support[s] Armies,... and provide[s] and maintain[s] a Navy; and No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law....

36 This Does NOT Mean Congress Has No Role in War The Commander-in-Chief Power is a totally hollow The President grant of has authority no until troops, supplies, or Congress: Raise[s] and support[s] money without Armies,.. congressional. and provide[s] and maintain[s] a approval. Navy; and No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law....

37 This Does NOT Mean Congress Has No Role in War But, The time Commander-in-Chief permitting, I will argue Power that is a Congress totally may hollow The not President grant constitutionally of has authority no use until its troops, supplies, or legitimate Congress: powers Raise[s] to constrain and support[s] micromanage Armies, the. Commander. money without congressional. provide[s] in Chief s and independent maintain[s] constitutional a approval. Navy; and powers. No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law....

38 Constitutional Issues The 1973 War Powers Resolution is UNCONSTITUTIONAL

39 I ve written two books and Constitutional Issues numerous articles on this, but our time is limited and will The 1973 War Powers Resolution is save the details for Q&A. UNCONSTITUTIONAL

40 1983 I ve written two books and Constitutional Issues numerous articles on this, but our time is limited and will The 1973 Sen. Tower War was Powers Resolution is save the chairman details of the for Q&A. UNCONSTITUTIONAL Senate Armed Services Committee. 1991

41 I ve written two books and Constitutional Issues numerous articles on this, but our time is limited and will The 1973 War Powers Resolution is save the details for Q&A. UNCONSTITUTIONAL 1983 I trust you all remember President Ford. 1991

42 The Significance of UN Security Council Authorization Does a Chapter VII Resolution Make a Difference?

43 United Nations Charter (1945) Signed June 26 Approved by Senate July 28 by a vote of 89-2 (four absent senators announced support)

44 Unanimous SFRC Report on UN Charter (1945) Preventative or enforcement action by these [US] forces upon the order of the Security Council would not be an act of war but would be international action for the preservation of the peace and for the purpose of preventing war. Consequently, the provisions of the Charter do not affect the exclusive power of the Congress to declare war.

45 Unanimous SFRC Report on UN Charter (1945) The committee feels that a reservation or other congressional action would also violate the spirit of the United States Constitution under which the President has well-established powers and obligations to use our armed forces without specific approval of Congress. Senate Foreign Relations Committee Report recommending consent to ratification of UN Charter (1945).

46 HFAC Report on UN Participation Act (Unanimous 1945) The basic decision of the Senate in advising and consenting to ratification of the Charter resulted in the undertaking by this country of various obligations which will actually be carried out by and under the authority of the President as the Chief Executive, diplomatic, and military officer of the Government....

47 HFAC Report on UN Participation Act (Unanimous 1945) [T]he ratification of the Charter resulted in the vesting in the executive branch of the power and obligation to fulfill the commitments assumed by the United States thereunder. House Foreign Affairs Committee Rep t No (1945).

48 Congressional Expectations on UN Military Operations The Wheeler Amendment to the 1945 UN Participation Act

49 The Wheeler Amendment to the UNPA (December 4, 1945) [T]he President shall have no authority to make available to the Security Council any armed forces to enable the Security Council to take action under article 42 of said charter, unless the Congress has by appropriate act or joint resolution authorized the President to make such forces available in the specific case in which the Council proposed to take action.

50 Senate Action on the Wheeler Amendment The Wheeler Amendment was defeated by a margin of more than 7 to 1 (9 yeas, 65 nays). [UNPA then passed 65-7 (9:1 margin)]

51 For further information Harv. J. L. & Pub. Pol. 533 (1996).

52 Senate Action on the Wheeler Amendment The Wheeler Amendment was defeated KEY by ISSUE: a margin of more Was the view expressed by Congress in 1945 merely treaty interpretation, or was in constitutional interpretation? than 7 to 1 (9 yeas, 65 nays). [UNPA then passed 65-7 (9:1 margin)]

53 Senate Action on the Wheeler Amendment Why is that The Wheeler Amendment was important? defeated KEY by ISSUE: a margin of more Was the view expressed by Congress in 1945 merely treaty interpretation, or was in constitutional interpretation? than 7 to 1 (9 yeas, 65 nays). A more recent statute trumps an older treaty or statute. Whitney v. Robertson, 124 U.S. 190 (1888). [UNPA then passed 65-7 (9:1 margin)]

54 Senate Action on the Wheeler Amendment The Wheeler Amendment was defeated KEY by ISSUE: a margin of more Was the view expressed by Congress in 1945 merely treaty interpretation, or was in constitutional interpretation? than 7 to 1 (9 yeas, 65 nays). A more recent statute trumps an older treaty or statute. Whitney v. Robertson, 124 U.S. 190 (1888). [UNPA then passed 65-7 (9:1 margin)]

55 Senate Action on the Wheeler Amendment Thus, the War Powers Resolution would be given effect over than a 7 prior to 1 treaty under U.S. law. The Wheeler Amendment was defeated KEY by ISSUE: a margin of more Was the view expressed by Congress in 1945 merely treaty interpretation, or was in constitutional interpretation? (9 yeas, 65 nays). A more recent statute trumps an older treaty or statute. Whitney v. Robertson, 124 U.S. 190 (1888). [UNPA then passed 65-7 (9:1 margin)]

56 Unanimous SFRC Report on UN Charter (1945) The committee feels that a reservation or other congressional action would also violate the spirit of the United States Constitution under which the President has well-established powers and obligations to use our armed forces without specific approval of Congress. Senate Foreign Relations Committee Report recommending consent to ratification of UN Charter (1945).

57 Senate Action on the In contrast, an act of the legislature repugnant to the constitution is void. Wheeler Amendment The Wheeler Amendment was defeated KEY by ISSUE: a margin of more Was the view expressed by Congress in 1945 merely treaty interpretation, or was in constitutional interpretation? than 7 to 1 Marbury v. Madison 5 U.S. 137 (1803). (9 yeas, 65 nays). [UNPA then passed 65-7 (9:1 margin)]

58 Senate Action on the Wheeler Amendment The Wheeler Amendment was So the key issue we defeated KEY by ISSUE: a margin of more Was the view expressed by Congress in 1945 merely treaty interpretation, or was in constitutional interpretation? will need to address is than 7 to 1 whether the 1973 War (9 yeas, 65 nays). Powers Resolution is In contrast, an act of the legislature repugnant to the constitution is void. Marbury v. Madison 5 U.S. 137 (1803) [UNPA then passed 65-7 (9:1 margin)] constitutional.

59 Senate Action on the Wheeler Amendment The Wheeler Amendment was So the key issue we defeated KEY by ISSUE: a margin of more Was the view expressed by Congress in 1945 merely treaty interpretation, or was in constitutional interpretation? will need to address is than 7 to 1 whether the 1973 War (9 yeas, 65 nays). Powers Resolution is In contrast, an act of the legislature repugnant to the constitution is void. Marbury v. Madison 5 U.S. 137 (1803) [UNPA then passed 65-7 (9:1 margin)] constitutional.

60 THE 1973 WAR POWERS RESOLUTION

61 War Powers Resolution: The Proper Constitutional Standard? [applies to] the introduction of United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances.? Congress shall have the power to declare War....

62 The War Powers Resolution (Public Law ) PURPOSE AND POLICY SEC (c) The constitutional powers of the President as Commanderin-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.

63 The War Powers Resolution (Public Law ) PURPOSE AND POLICY Sen. Jacob Javits SEC said this language (c) The constitutional powers of the President as Commanderin-Chief to introduce was United intended States Armed to be Forces into hostilities, or into situations legally where binding. 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.

64 By the way, the Vietnam War was authorized (Public by specific Law ) statutory authorization by a combined vote of (99.6%). The War Powers Resolution PURPOSE AND POLICY SEC (c) The constitutional powers of the President as Commanderin-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.

65 By the way, the Vietnam War was authorized (Public by specific Law ) statutory authorization by a combined vote of (99.6%). The War Powers Resolution During the August 1964 Senate floor debate, Sen. Fulbright who introduced the Tonkin Gulf AUMF was asked whether it would authorize the president to use such force as could lead to war. PURPOSE AND POLICY SEC (c) The constitutional powers of the President as Commanderin-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.

66 By the way, the Vietnam War was authorized (Public by specific Law ) statutory authorization by a combined vote of (99.6%). The War Powers Resolution During the August 1964 Senate floor debate, Sen. Fulbright who introduced the Tonkin Gulf AUMF was asked whether it would authorize the president to use such force as could lead to war. PURPOSE AND POLICY SEC (c) The constitutional powers of the President as Commanderin-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are He replied: That is the way I would interpret it. 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.

67 By the way, the Vietnam War was authorized (Public by specific Law ) statutory authorization initiative, Congress by a combined vote of (99.6%). The War Powers Resolution On its own During the Senate floor debate, Sen. Javits who introduced the AUMF was asked whether it would authorize the president to use such force as could lead to war. He replied: That is the way I would interpret it. PURPOSE more AND that POLICY tripled SEC (c) The constitutional LBJ s powers of the President as Commanderin-Chief to introduce United States Armed Forces into hostilities, appropriations or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are request for exercised only pursuant to (1) a declaration of war, (2) specific Vietnam. statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.

68 For the By next the way, 3 years, the Vietnam War was Congress authorized appropriated (Public by specific Law ) statutory funds authorization initiative, for the Vietnam Congress by a combined War PURPOSE by vote more of AND than POLICY 90% (99.6%). more that tripled SEC. majorities The War Powers Resolution On its own During the Senate floor debate, Sen. Javits who introduced the AUMF was asked whether it would authorize the president to use such force as could lead LBJ s to war. He replied: That is the way I would interpret it. (c) The constitutional powers of the President as Commanderin-Chief to introduce United States Armed Forces into hostilities, appropriations or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are request for exercised only pursuant to (1) a declaration of war, (2) specific Vietnam. statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.

69 By the way, the Vietnam War was authorized (Public by specific Law ) statutory authorization by a combined vote of (99.6%). The War Powers Resolution Put simply, the 1973 War Powers PURPOSE AND POLICY SEC Resolution was a FRAUD (c) The constitutional designed powers of to the deceive President as the Commanderin-Chief to introduce United States Armed Forces into hostilities, American or into situations people where imminent into thinking involvement in hostilities is clearly indicated by the circumstances, are Congress played no role in exercised only pursuant to (1) a declaration of war, (2) getting us into war in Vietnam. specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.

70 The War Powers Resolution (Public Law ) REPORTING SEC. 4. (a) In the absence of a declaration of war, in any case in which United States Armed Forces are introduced-- (1) into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances; (2) into the territory, airspace or waters of a foreign nation, while equipped for combat, except for deployments which relate solely to supply, replacement, repair, or training of such forces; or..... the 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,

71 The War Powers Resolution (Public Law ) CONGRESSIONAL ACTION SEC (b) Within sixty calendar days after a report is submitted or is required to be submitted pursuant to section 4(a)(1), 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. Such sixty-day period shall be extended for not more than an additional thirty days if the President determines and certifies to the Congress in writing that unavoidable military necessity respecting the safety of United States Armed Forces requires the continued use of such armed forces in the course of bringing about a prompt removal of such forces.

72 Operations in Libya (2011)

73 UNSC Res (17 March 2011) 4. Authorizes Member States... acting nationally or through regional organizations or arrangements, and acting in cooperation with the Secretary-General, to take all necessary measures, notwithstanding paragraph 9 of resolution 1970 (2011), to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya, including Benghazi, while excluding a foreign occupation force of any form on any part of Libyan territory....

74 The U.S. Role The White House Office of the Press Secretary For Immediate Release June 15, 2011 Dear Mr. Speaker: (Dear Mr. President:) I am providing this supplemental consolidated report, prepared by my Administration and consistent with the War Powers Resolution (Public Law ), as part of my efforts to keep the Congress informed about deployments of U.S. Armed Forces equipped for combat....

75 The U.S. Role This is the language used by six prior presidents who contended the War Powers The White House Resolution is UNCONSTITUTIONAL. Office of the Press Secretary (Rather than For reporting Immediate Release pursuant to the June 15, 2011 WPR.) Dear Mr. Speaker: (Dear Mr. President:) I am providing this supplemental consolidated report, prepared by my Administration and consistent with the War Powers Resolution (Public Law ), as part of my efforts to keep the Congress informed about deployments of U.S. Armed Forces equipped for combat....

76 The U.S. Role MILITARY OPERATIONS IN LIBYA.... (3) since April 23, [U.S. forces have engaged in] precision strikes by unmanned aerial vehicles against a limited set of clearly defined targets in support of the NATO led coalition's efforts.... With the exception of operations to rescue the crew of a U.S. aircraft on March 21, 2011, the United States has deployed no ground forces to Libya.

77 The U.S. Role MILITARY OPERATIONS IN LIBYA.... Since April 4, U.S. participation has consisted of:.... (3) since April 23, precision strikes by unmanned Is aerial this vehicles legal against under a limited set of clearly defined targets in support of the NATO led coalition's efforts. the. War.. With Powers the exception of operations to rescue the crew of a U.S. aircraft on Resolution? March 21, 2011, the United States has deployed no ground forces to Libya....

78 Questions Does anyone doubt that sending Predator drones over Libyan territory to fire Hellfire missiles at members of that country s armed forces falls under the definition of taking part in hostilities?

79 Meaning of Hostilities [I]t might be possible to come up with language that keyed in on whether U.S. forces have been authorized to use lethal force other than on a selfdefense basis. Prof. Robert Chesney Lawfare Blog

80 The Obama Administration s Position Pentagon General Council Jeh Johnson said we were involved in hostilities and needed congressional approval.

81 The Obama Administration s Position Acting Asst. Att y Gen. (OLC) Carolyn Krass reportedly said we were involved in hostilities and needed congressional approval.

82 The Obama Administration s Position Att y Gen. Eric Holder reportedly said we were involved in hostilities and needed congressional approval.

83 The Obama Administration s Position State Department Legal Adviser Harold Koh said we were NOT involved in hostilities and needed NO congressional approval.

84 The Obama Administration s Position State Department Some might Legal call this Adviser Harold forum Koh said shopping. we were NOT involved in hostilities and needed congressional approval.

85 The Obama Administration s I call it Position ironic. State Department Some might Legal call this Adviser Harold forum Koh said shopping. we were NOT involved in hostilities and needed congressional approval.

86 The Obama Administration s I call it Position ironic. State Department Some might Legal call this Adviser Harold Harold Koh forum Koh and I said have shopping. we were NOT debated involved War in Powers hostilities and needed and congressional other issues dating approval. back to 1990.

87 The Obama Administration s I call it Position ironic. State Department Some might Legal call this Adviser Here he is Harold forum in Oct Harold Koh Koh and I said have shopping. we were NOT challenging my debated argument involved War that we in Powers could hostilities and needed and intentionally congressional other issues target dating approval. Saddam Hussein back more than 20 during Operation Desert Storm. years.

88 The Obama Administration s Harold said Position targeting individuals was I call it ironic. State Department Some might Legal call this Adviser Here he Harold assassination is Harold forum Oct Koh Koh and I said have shopping. we were NOT challenging debated involved and my War illegal in Powers hostilities under argument that we could and needed and intentionally congressional other U.S. issues target and dating approval. Saddam Hussein back more international than 20 law. during Operation Desert Storm. years.

89 The Obama Administration s Targeting Position individuals was I call it ironic. State Department Some might In March Legal call 2010, this Harold Adviser Here he Harold assassination is Harold forum Oct Koh Koh and I said have shopping. we were NOT challenging debated involved and my War illegal in Powers hostilities under argument that we could an address to and the American needed and intentionally congressional other U.S. issues target and dating Society of International Law. approval. Saddam Hussein back more international than 20 law. during Operation Desert Storm. years. defended targeting individuals by Predator drones as lawful in

90 Harold Koh s Defense of Libya Operation Quoting Ford and Reagan lawyers, he claimed I continue nearly four decades of dialogue between Congress and Legal Advisers regarding the Executive Branch s legal position on war powers.

91 Harold Koh s Defense of Libya Operation Noting past presidents had largely ignored the WPR, Koh warned about narrow parsing of dictionary definitions so as to avoid unduly hampering future presidents.

92 Harold Koh s Defense of Libya Operation [T]he military operations that the President anticipated were not sufficiently extensive to constitute a war requiring prior specific approval under the Declaration of War Clause.

93 Harold Koh s Defense of Libya Operation [T]he military Obviously, operations he that is the President right but anticipated that were is not sufficiently not extensive the standard to of constitute a war requiring the WPR! prior specific approval under the Declaration of War Clause.

94 Harold Koh s Defense of Libya Operation Scholars will certainly go on debating this issue. But that should not distract those of us in government from the most urgent question now facing us which is not one of law but of policy.

95 Harold Koh s Defense of In other Libya words, Operation if it s good policy, let s not Scholars will certainly go on debating worry about whether we this issue. But that should not distract are breaking those of the us in law? government from the most urgent question now facing us which is not one of law but of policy.

96 Harold Koh s Defense of In other Libya words, Operation if it s good policy, let s not Scholars will certainly go on debating worry about whether we this issue. But that should not distract are breaking Is that those of the the us in law? government from function the most urgent of question the now facing us which is not one of law but of policy. Legal Adviser?

97 Harold Koh s Defense of Libya Operation Harvard s Prof. Jack Noting Goldsmith past presidents noted for had a largely ignored quarter the century WPR,.. Koh. Koh warned about narrow was the parsing leading of and dictionary most definitions vocal academic so as critic to avoid of unduly hampering presidential future unilateralism presidents. in war.

98 Harold Koh s Defense of There is an old Washington adage: Libya Operation Where you stand often Harvard s Prof. Jack Noting Goldsmith past presidents noted for had a largely ignored quarter the century WPR,.. Koh. Koh warned about narrow was the parsing leading of and dictionary most definitions vocal academic so as critic to avoid of unduly hampering presidential future unilateralism presidents. in war. depends upon where you sit.

99 Harold Koh s Defense of There is an old Washington adage: Where you Libya stand Operation often Harvard s Perhaps Prof. you can Jack tell I m Noting Goldsmith having past presidents fun noted watching for had a largely ignored quarter Harold the century Koh WPR, paraphrase.. Koh. Koh warned about narrow was arguments the parsing leading I ve of and been dictionary most definitions vocal making academic since so as critic to avoid of unduly hampering presidential future unilateralism presidents. in war. depends upon where you sit.

100 Harold Koh s Defense of There is an old Washington adage: Where you Libya stand Operation often Harvard s Perhaps Prof. you can Jack tell I m Noting Goldsmith having past presidents fun noted watching for had a largely ignored quarter Harold the century Koh WPR, paraphrase.. Koh. Koh But that doesn t mean warned I about narrow was arguments the parsing leading I ve of and been dictionary most don t think he is right in definitions vocal making academic since so as critic to avoid of his bottom line unduly hampering presidential future unilateralism conclusion. presidents. in war. depends upon where you sit.

101 OLC Argument Legal Memo for AG (April 1, 2011) [T]he anticipated operations here served a limited mission and did not aim at the conquest or occupation of territory.

102 OLC Argument Legal Memo for AG (April 1, 2011) [T]he anticipated operations here served a limited mission and did not aim at the conquest or occupation of territory. When I first read this I thought perhaps it was an APRIL FOOLS joke!

103 OLC Argument Legal Memo for AG (April 1, 2011) The War Power [T]he anticipated operations here served a limited Resolution mission was and a did not aim response at the conquest to the Vietnam or occupation of territory. When War. I first read this I thought perhaps it was an APRIL FOOLS joke!

104 We OLC didn t Argument aim at the conquest or occupation of territory in Vietnam, [T]he anticipated The War Power either! operations here served Resolution a limited mission was a and did not aim response at the conquest to the Vietnam or occupation War. of territory. Legal Memo for AG (April 1, 2011) When I first read this I thought perhaps it was an APRIL FOOLS joke!

105 Questions Does President Obama have a defense to Have U.S. armed forces Does violating anyone doubt the War that sending Predator Powers DOES drones Resolution? IT over REALLY Libyan territory to airspace fire Hellfire or missiles waters forces of a loyal MATTER? to foreign that country s nation, government while falls under the definition of taking part in equipped for combat...? hostilities? been sent into the territory,

106 Does the Questions Does President Obama Constitution trump Have have a U.S. defense armed to forces an inconsistent been sent into the territory, statute? Does violating anyone doubt the War that sending Predator Powers DOES drones Resolution? IT over REALLY Libyan territory to airspace fire Hellfire or missiles waters forces of a loyal MATTER? to foreign that country s nation, government while falls under the definition of taking part in equipped for combat...? hostilities?

107 Does the Questions Does President Obama Constitution trump Have have a U.S. defense armed to forces an inconsistent been sent into the territory, statute? Does violating anyone doubt the War that sending Predator drones Does over the Libya Powers DOES Resolution? Libyan territory to fire Hellfire Operation IT REALLY missiles even airspace or waters forces of a loyal to foreign that country s arguably MATTER? nation, government conflict with while falls under the the definition power of of Congress taking part in equipped for combat...? hostilities? to declare War?

108 Does the Questions Does President Obama Constitution trump Yet, Have have to date, a U.S. defense the Obama armed to forces an inconsistent been sent into the territory, statute? Does administration violating anyone doubt the is War the that sending Predator drones Does over the Libya only Powers presidential DOES Resolution? IT REALLY Libyan territory to administration airspace fire Hellfire Operation or missiles since even waters it arguably forces of a loyal MATTER? to was foreign that enacted country s conflict with over nation, government the power while falls of Nixon s under the veto Congress definition that has to not of declare taking part in asserted equipped the War for Powers combat...? hostilities? War? Resolution is UNCONSTITUTIONAL.

109 Senate Majority Leader George Mitchell (1988) Although portrayed as an effort to fulfill not to alter, amend or adjust the intent of the framers of the U.S. Constitution, the War Powers Resolution actually expands Congress authority beyond the power to declare war to the power to limit troop deployment in situations short of war. By enabling Congress to require by its own inaction the withdrawal of troops from a situation of hostilities, the resolution unduly restricts the authority granted by the Constitution to the President as Commander in Chief.

110 Senate Majority Leader George Mitchell (1988) [T]he War Powers resolution does not work, because it oversteps the constitutional bounds on Congress power to control the Armed Forces in situations short of war and because it potentially undermines our ability to effectively defend our national interests. The War Powers Resolution therefore threatens not only the delicate balance of power established by the Constitution. It potentially undermines America s ability to effectively defend our national security. Congressional Record, 19 May, 1988.

111 Senate Majority Leader George Mitchell (1988) I could not [T]he War Powers resolution does not work, because it oversteps the constitutional bounds on Congress power to control the Armed Forces in situations short of war and because have it potentially said undermines our ability to effectively defend our national interests. that better. The War Powers Resolution therefore threatens not only the delicate balance of power established by the Constitution. It potentially undermines America s ability to effectively defend our national security. Congressional Record, 19 May, 1988.

112 National War Powers Commission In July 2008 the bipartisan National War Powers Commission unanimously concluded the War Powers Resolution is UNCONSTITUTIONAL and should be REPEALED.

113 National War Powers Commission But unless and until the Administration acknowledges the War Powers Resolution is In July 2008 the bipartisan National War Powers Commission unanimously unconstitutional concluded and the thus War Powers void, Resolution they clearly is UNCONSTITUTIONAL violated that law. and should be REPEALED.

114 Consequences of the War Powers Resolution From Beirut to 9/11

115 Partisan Implementation The implementation of the WPR has been characterized by political partisanship.

116 Partisan Implementation The implementation of the WPR has been characterized by political partisanship. When Bush was President, Republicans said it was unconstitutional.

117 Partisan Implementation The implementation of the WPR has been characterized by political partisanship. When Bush was President, Republicans said it was unconstitutional. They now denounce Obama as a lawbreaker.

118 Partisan Implementation The implementation of the WPR has been characterized by political partisanship. When Bush was President, Republicans said it was unconstitutional. They now denounce Obama as a lawbreaker. Trust, me the Democrats are every bit as partisan when Republicans control the White House..

119 BERUIT A PARTISAN CONGRESS PLACES A BOUNTY ON AMERICAN LIVES

120 Congress Signals Weakness Congressional hesitation, reservations, and fears are such, however, that should American troops suffer casualties in Beirut, many senators and congressman would immediately reconsider their support. Knickerbocker & Southerland, Congress: A Wary Aye on Marines, Christian Science Monitor, 22 Sept. 1983, p. 1.

121 Terrorists Told To Kill Marines [U.S. intelligence intercepted] a radio message between two Moslem militia units: If we kill 15 Marines, the rest will leave. Marines Draw a Bead on Snipers, U.S. News & World Report, 31 October 1983, p. 13.

122 Congress (Unintentionally) Placed a Bounty on Our Forces At dawn on Oct. 23, 1983, a terrorist truck loaded with explosives killed 241 sleeping marines at the BLT Headquarters in Beirut, Lebanon. Shortly thereafter, the remaining marines were withdrawn.

123 Osama bin Laden drew lessons from Beruit about U.S. will and courage that helped bring us 9/11. In 1998 Osama bin Laden told ABC News that America s retreat following the Beirut bombing proved America was unwilling to accept casualties.

124 Osama bin Laden drew lessons from Beruit about U.S. will and courage that helped bring us 9/11. A 2003 Knight Ridder account observed: The retreat of U.S. forces inspired Osama bin Laden and sent an unintended message to the Arab world that enough body bags would prompt Western withdrawal, not retaliation.

125 Osama SOME bin Laden CONCLUSIONS: drew lessons from Beruit about U.S. will and courage that helped bring us 9/11 The power of Congress to declare War is now an anachronism; A 2003 Knight Ridder Congress still has very important powers related to account observed: The war, including control of appropriations; retreat of U.S. forces The War Powers Resolution is unconstitutional inspired Osama bin and ought to be repealed; Laden and sent an Presidents should consult carefully and work with unintended message to Congress on matters that might lead to hostilities; the Arab world that Everyone in Washington should put the Country enough body bags above partisan political interests.... would prompt Western withdrawal, not retaliation.

126 The Power of the Purse Does Legislative Control Over Appropriations Give Congress Constitutional Authority to Direct the Execution of Commander-in-Chief Powers?

127 Are there no limits on the Power of the Purse? It is important to bear in mind that we are here dealing not alone with an authority vested in the President by an exertion of legislative power, but with such an authority plus the very delicate, plenary, and exclusive power of the President as the sole organ of the federal government in the field of international relations - a power which does not require as a basis for its exercise an act of Congress, but which, of course, like every other governmental power, must be exercised in subordination to the applicable provisions of the Constitution. Curtiss-Wright

128 First Appropriations Bill for Foreign Intercourse (1 July 1790) [T]he President shall account specifically for all such expenditures of the said money as in his judgment may be made public, and also for the amount of such expenditures as he may think it advisable not to specify, and cause a regular statement and account thereof to be laid before Congress annually U.S. Statutes at Large, vol. 1, p. 129 (1790). Article I, Section 9, of the Constitution requires that a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.

129 Thomas Jefferson on Appropriations letter to Secretary of the Treasury Albert Gallatin (19 February 1804) The Constitution has made the Executive the organ for managing our intercourse with foreign nations.the executive being thus charged with the foreign intercourse, no law has undertaken to prescribe its specific duties.... From the origin of the present government to this day... it has been the uniform opinion and practice that the whole foreign fund was placed by the Legislature on the footing of a contingent fund, in which they undertake no specifications, but leave the whole to the discretion of the President. The Writings of Thomas Jefferson, vol. 11, pp. 5, 9, 10 (Mem. ed. 1903).

130 Congress May Not Lawfully Use Its Powers to Usurp the Constitutional Powers of Another Branch United States v. Klein United States v. Lovett

131 United States v. Klein 80 U.S. (13 Wall.) 128, 145, (1872) [T]he language of the proviso shows plainly that it does not intend to withhold appellate jurisdiction except as a means to an end. Its great and controlling purpose is to deny to pardons granted by the President the effect which this court has adjudged them to have.the rule prescribed is also liable to just exception as impairing the effect of a pardon, and thus infringing the constitutional power of the Executive.It is the intention of the Constitution that each of the great coordinate departments of the government the legislative, the executive, and the judicial shall be, in its sphere, independent of the others. To the Executive alone is intrusted the power of pardon; and it is granted without limit. Now it is clear that the legislature cannot change the effect of such a pardon any more than the executive can change a law. Yet this is attempted by the provision under consideration.

132 United States v. Lovett 328 U.S. 303, 313, 315, (1946) During 1942, the conservative chairman of the House Appropriations Committee inserted section 304 into the Urgency Deficiency Appropriation Act of 1943 prohibiting the payment of treasury funds to three named individuals who had been accused of being subversives by the chairman of the House Committee on Un-American Activities. The Senate repeatedly rejected the conference report, but FDR desperately needed the money for the war so asked them to approve it. FDR then issued a signing statement refusing to enforce Section 304.

133 United States v. Lovett 328 U.S. 303, 313, 315, (1946) We cannot conclude, as [Counsel for Congress] urges, that [the section] is a mere appropriation measure, and that, since Congress under the Constitution has complete control over appropriations, a challenge to the measure s constitutionality does not present a justiciable question in the courts, but is merely a political issue over which Congress had final say.we hold that [the section] falls precisely within the category of congressional actions which the Constitution barred by providing that No Bill of Attainder or ex post facto Law shall be passed.

134 Clear and Present Danger The modern practice of using conditions on appropriations bills to exercise control of powers vested elsewhere in the Constitution is a threat to the core doctrine of Separation of Powers. If Congress can seize the Commander-in-Chief power, it can destroy the Judicial power too....

135 Supreme Court Neutralization Act of 2014 (not yet introduced) Be it hereby enacted, that No funds appropriated by this or any other act shall be available to finance the operations of the Supreme Court, other than to pay the salaries of the Justices, if the Court holds any statute or part of a statute enacted by Congress to be unconstitutional.

136 Are there any questions?