Obama’s Impeachment: Mr. Jones and the War Powers Act 2/2

by Nomad

In the previous post in this series, we examined in detail the resolution put forward by Republican Congressman Walter B. Jones of North Carolina charging President Obama with impeachable acts for his handling of the incidents in Libya last year. For the most part, we have seen them to be specious and without any real foundation. As I mention at the close of that post, there still seemed to be something I was overlooking. We'll begin with a closer look at the law.

The War Powers Act as Written

source:

To understand more about the War Powers Act, we need to take a small step back in time. 

In an attempt to put in practice the lessons learned from the Vietnam War, in 1973 Congress established the War Powers Resolution (later called the War Powers Act) which attempted to limit the president’s ability to wage undeclared wars; more precisely to limit the president’s ability to conduct a protracted military engagement without the authorization of Congress.

The act also attempted to clarify the ambiguity on the Constitution which considers the president the Commander in Chief of the Armed Forces while at the same time, gives Congress the power to declare war and to provide the funding.

And the constitution certainly allows Congress the right to enacting such limits. According to Article II, section 8, Congress “shall have the power to make all laws necessary for carrying in execution, not only it own powers but also all other powers vested by the Constitution..”

To that end, the War Powers Act specified the general limitations this way:

"Sec 2c.: The Constitutional powers of the President as Commander-in-Chief to introduce U.S. 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) statutory authorization, or (3) a national emergency created by attack upon the US, its territories or possessions, or its armed forces.

Thus, there are three legitimate reasons, according to the act, for a president to consider any intervention that puts American troops into a war zone or where danger could conceivably occur. Stated differently, if a president wishes to puts his troops in harm's way, there are three conditions that must be met. 

Please note, as we shall see, the third possible reason is vague enough to allow a great deal of flexibility. Does an attack on a serviceman on foreign soil constitute a national emergency?

Sec. 3.: The President in every possible instance shall consult with Congress before introducing U.S. Armed Forces into hostilities or situations where imminent involvement in hostilities is clearly indicated...

According to a Congressional report, the word “consult” is not the same as “inform.” Rather than being given the facts of an intended action, the members of Congress are to be asked for their advice and opinions and "in appropriate circumstances, their approval of action contemplated.” 
While this might sound like a bit of nit-picking, we shall see that this particular section of the War Powers Act has been regularly violated a number of president.

Sec. 4a. In the absence of a declaration of war, in any case ...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, setting forth:

A. the circumstances necessitating the introduction of U.S. 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.

...5b. Within 60 calendar days after a report is submitted or is required to be submitted... the President shall terminate any use of U.S. Armed Forces... unless the Congress (1) had declared war or has enacted a specific authorization for such use of U.S. Armed Forces, (2) has extended by law such 60 day period, or (3) is physically unable to meet... Such 60 day period shall be extended for not more than an additional 30 days if the President determines and certifies to the Congress in writing that unavoidable military necessity respecting the safety of U.S. Armed Forces requires the continued use of such armed forces in the course of bringing about a prompt removal of such forces...

In spite of the misleading wording of Jones’ resolution, the War Powers Act requires only that the president consult with members of Congress prior to intervention. It does not require that the president obtain Congressional approval for any military engagement lasting less than sixty days. (And only then when troops are actually put into a hostile environment- which is debatable in this particular case.)

5c. Notwithstanding subsection b., at any time that U.S. Armed Forces are engaged in hostilities outside the territory of the US... without a declaration of war or specific statutory authorization, such forces shall be removed by the President if the Congress so directs by concurrent resolution...

These then are the key provisions of the War Powers Act which, after a careful reading, should put the claims of the representative from North Carolina to rest. 

(For an enlightening examination of the War Powers Resolution, the Congressional Research Service report, War Powers Resolution: After Thirty-Six Years, by Richard F. Grimmet can be a useful guide.)

The War Powers Act in Practice

Regardless of all the carping, Obama’s handling of the Libyan crisis- if anything-was a ideal example of how a president should operate in attempting to follow the constraints of the War Powers Act of 1973. 
Prior to commencement of military operations in Libya requested a review by the Justice Department of the president’s constitutional authority regarding the War Powers act as it applied in this instance. 

Prof. Gordon L. Bowen of Mary Baldwin College, Staunton VA reviewed the historical evidence of the 21 interventions from 1973-1990 and the 42 others from 1990-2004. He has come up with this assessment.

Presidential use of the war power has not been constrained very much by the existence of the War Powers Resolution.

Most presidents have simply ignored it for the sake of expediency. And unlike the recent example, in those cases, there were troops dispatched on foreign soil. 

For example, on October 25, 1983, President Reagan reported, after the fact and without congressional consultation, of the use of 1900 U.S. forces to invade and occupy the tiny Caribbean island of Grenada, one of the smallest independent nations in the West. 

All U.S. combat forces were withdrawn by December 15. The pretext for the invasion- that American students at a university there were in grave danger by the civil unrest- was seen by most people, at least, as flimsy. (Although the “rescued” medical students of St. George’s University later told reporters that they were relieved to back home, there had been no evidence that any of the students were in any actual danger. Opinion polls showed that while the public approved of the mission, they did not believe that the students were ever in any real danger.)

Even more importantly, Reagan’s deployment of troops in Lebanon in July 1982 is far more important instance in which the president was allowed to ignore the War Powers Act. 
At that time, Reagan announced he would be sending a small contingent of American Marines as part of a multi-national peacekeeping force. By September of that year, the situation had seriously deteriorated and 1200 more Marines were sent into what was becoming a war zone. 

It was only in mid-1983, that Congress demanded some kind of explanation from the White House. In October, over a year from the commencement of operations in Lebanon, with no mention of the War Powers Act, 241 servicemen were killed as they slept in their barracks by a suicide car bomber. 220 Marines, 18 Navy Sailors, and three Army Soldiers. 

If ever there was a case for impeachment, then this surely would at least qualify.

(It is also important to note that the loss of life caused bombing of the barracks in Beirut- a result of putting American troops in a hostile environment and a clear violation of War Powers Act- occurred on October 23, 1983. The invasion of Grenada which the United Nations General Assembly condemned it as "a flagrant violation of international law" occurred on 25 October. 
This gives some support to the charge that the Reagan administration had manufactured the island invasion- in violation of international law and the War Powers Act- merely to distract the nation from  a more serious and possible impeachable violation of the War Powers Act in Lebanon.)

Other examples of probable violations of the War Powers Act can be cited in George H.W. Bush’s term as well.

On December 20, 1989, President Bush notified the leaders of both houses of the U.S. Congress that he had dispatched 12,000 troops to restore democracy in Panama and to arrest Gen. Manuel Noriega, de facto ruler of that nation, on criminal charges of drug trafficking and money laundering. Congress was only notified a few hours before the operation- not consulted- and certainly no congressional authorization in that case.
And Reagan and George H. W. Bush were not, by any standard, alone in his disdain for the War Powers Act. And it is not limited to Republican conservative presidents either; Clinton in Kosovo, Carter’s failed rescue mission in Iran. In fact, every president, since the resolution was first enacted in 1973, has defied the limits in one respect or another.

What’s Really Going On?

What is most remarkable about the resolution that Jones has drafted seems to be its cynicism. In the span of four years we seem to have come a very long way from the much-touted and generally-unchallenged Bush Doctrine upon which the neo-conservatives gave ample blessing. 

That policy advocated the right of pre-emptive strikes against the possibility of imminent threat. Additionally, this policy supposedly gave the right for United States to take down foreign regimes when they represented a potential or perceived threat to the security of the United States, even if that threat was not immediate. 

There were also element of a crusade, “a policy of spreading democracy around the world, especially in the Middle East, as a strategy for combating terrorism; and a willingness to unilaterally pursue U.S. military interests.”

Now, however, in the Obama presidency, terms like “regime-change” and “nation-building” have been replaced by discussion of impeachment and violations of the War Powers Act, of Congressional approval and presidential limits of power. Have the Republican finally decided that the constitution and the rule of law actually do mean something? That war is a serious subject?

Therefore it is fair to ask the reason behind this resolution. Is it more anti-Obama rhetoric? Could it be merely a bit of posturing in an election year? 

In fact, there is much more to it than that but in order to understand this, we must first return to the man who wrote the resolution.

Friends of the Freedom Fries

When the Bush Administration began its march to war in Iraq in 2003, it was Rep. Walter B. Jones who supported the cause. In response to French opposition to the American war drums, Jones received some degree of notoriety along with Rep. Bob Ney when he demanded that the french fries served in the House cafeteria be renamed “freedom fries.” (He concedes now that it was not his proudest moment. "I wish it had never happened," he says.)

Later Jones was to undergo a change of heart about the reasons for going to war. Unlike many in the neoconservative camp, he came to believe that it had all been based on, if not erroneous, then selective intelligence. And this would not be the first time that Jones was disillusioned. He had once been a firm supporter of Newt Gingrich’s "Contract With America" until, after spending some time watching how the political machine operated in Washington, Jones came away disgusted. 

His moment of awakening about the Iraq war came at the funeral of a young Marine. He was, according to his own account, profoundly moved by the widow and the orphaned son. Mother Jones gives us this:

"This was a spiritual happening for me," he says. "I think at that point I fully understood the loss that a family feels." Driving home to Farmville [his hometown in North Carolina] that day, grief swelled in him. "The whole way, 72 miles, I was thinking about what I just witnessed. I think God intended for me to be there."

As a result of this change of heart, Jones began his habit of writing to the families of soldiers killed in Iraq and he has written over 2,000 of them. Letter by letter, he began to question the legitimacy for going to war and the justification that the Bush administration had used to convince Congress. He began to focus on the misrepresentations and the distortion and the exaggeration involved in the period prior to the invasion.

With this information- information which none of the mainstream media have bothered to mention when reporting the resolution- we can begin to see Jones from a different angle. 

Returning to a website I quoted earlier, Impeachobamacampaign.com, we find another interesting clue:

Notable legal experts and scholars from both the left and the right, including former Democrat U.S. Attorney General Ramsey Clark, former Republican Deputy U.S. Attorney General Bruce Fein, and Professor of Law Francis Boyle, have publicly offered their services to assist in carrying out impeachment proceedings against President Obama over his unconstitutional and otherwise illegal war on Libya to any member of Congress willing to step forward and introduce Articles of Impeachment.

By any estimation, it is an interesting cast of characters. 

Having served in both the Kennedy and Johnson administrations, Ramsey Clark is a law professor and was once active in the Anti-Vietnam War movement. In fact, he actually visited North Vietnam in 1972 to protest Nixon’s illegal bombing of Hanoi. 

More recently Mr. Clark has been vocal in his accusations against George H. W. Bush, J. Danforth Quayle, James Baker, Richard Cheney, William Webster, Colin Powell, Norman Schwarzkopf of "crimes against peace, war crimes" and "crimes against humanity" for its conduct of the Gulf War against Iraq which ended the occupation of Kuwait, and the ensuing sanctions. According to Wikipedia:

In 2002, Clark founded "VoteToImpeach", an organization advocating the impeachment of George W. Bush and several members of his administration. For the duration of Bush's terms in office, Clark sought, unsuccessfully, to bring Bush to stand trial for impeachment. Clark was an opponent of both the 1991 and 2003 Persian Gulf Wars.

Attempting to impeach presidents would seem to be a monkey on Ramsey Clark's back. He has been around forever and undoubtedly he has seen a lot of abuse to the War Powers Act.

We see the name of Bruce Fein on this list. Fein, a lawyer in the United States specializes in constitutional and international law, and has written articles advocating the impeachment of former U.S. presidents Bill Clinton and George W. Bush, and former U.S. Vice-President Dick Cheney. He has also taken President Obama to task for not prosecuting officials in the previous administration on their justifications for the use of torture.

His book, American Empire: Before the Fall, is a condemnation against an American foreign policy without clear objectives based primarily on domination. He writes:

"The larger national motivation is to dominate the world for the excitement of domination. The narrower particular motivation of the President is to reduce coequal branches of government to vassalage, to place the President above the law, and to justify secret government without accountability. James Madison’s admonitions about presidential wars have been vindicated."

Also mentioned as a supporter of Jones’ resolution is Francis Boyle. Boyle, a professor of international law at the University of Illinois College of Law, was a defiant critic of the foreign policy of George W. Bush. Additionally, in an effort to prevent any military strike against the nuclear facilities, he has urged the Iranian government to sue the US in the International Court of Justice.

Hardly what one might call Right Wing fanatics. Why, these are peace-niks.

Temptations of the Imperial Presidency

In this light, it seem the Jones resolution is not an attack on the Obama Administration - (although it is being framed that way) but on the imperial presidency and the inherent ambiguity of the War Powers Act.

The term, imperial presidency was coined in 1973, by writer Arthur M. Schlesinger, Jr. in a book of the same name. The book warned of a executive branch was that essentially out of control and had exceeded its power invested to it by the Constitution. The founding fathers had purposefully set out to reduce the power of kings and especially the power to make war. If no option was available to it, then at least, the drafters of the Constitution decided, Congress could at least cut off all funding. 

Obama is surely not the worst offender of this way of thinking, but many on both sides of the political spectrum charge him with falling under its spell.  The questionable use of drones as a tool for assassination, for example, has been essentially ignored by Congress. Although clearly it would not fall under the War Powers Act limitations- since no troops are put on the ground, is this or is this not an act of war? Unrestricted capacity to use "might" to make "right" is and always has been quite a temptation. 

So, although the resolution has no chance of going anywhere, or of succeeding in its goal to impeach the president, perhaps that’s not actually its intention.  If Congress should take up the challenge of Jones resolution, and open an investigation into possible violations of the War Powers Act, then suddenly all future military actions will have to be judged according to the same standards. 

It could be nothing less than an attempt to lure neoconservatives, in their unreasoning dislike of the president, into tightening, or even the mere  adherence and enforcement, of the War Powers Act. (It is something that would never think of doing in any other circumstance.) 

This comes at a delicate time in history in which both sides of the political spectrum may believe there is justification for foreign military action. 

The Syria civil war has been allowed to continue week after week with more and more innocent civilians being slaughtered; a temptation for the Left to use American forces for the side of liberation might be great. After all, the scenario in Libya was hardly any different.

Meanwhile, from the Far Right, the drum beats for an attack on Iranian nuclear facilities has lately been drowning out any remaining voices of reason and common sense.  All three of the top Republican candidates, Romney, Gingrich and Santorum have suggested they would resort to military force if necessary to destroy Iranian installations. And according to a Pew Research Center poll, more than half of the American public supports that option.

In the survey, 58 percent of respondents said it was more important to prevent Iran from developing nuclear weapons, even if that meant taking military action. Only 30 percent preferred avoiding a military conflict even if it meant Iran going nuclear. Republicans (74 percent) were far more supportive of using military force than Democrats (50 percent), but Democratic backing was still substantial.

The Jones Resolution is perhaps a reminder that there are already rules in place about the legal conduct of military intervention and ignoring them will come at a cost. But first of all, Congress must recognize its responsibilities. 

If you think the Far Right, the Tea Party members will never fall for this trick, that this is hopeless and doomed to failure, take a look at the next step in the process and decide for yourself.

The Terror Babies Gang

The Jones resolution has been referred to the Republican-dominated House Committee on the Judiciary where presumably the Chairman, Rep. Lamar Smith will or will not consider further action or formal statements. Smith, you may recall, was the man responsible for the SOPA fiasco, which had nearly the entire Networld angrily tweeting and writing their representatives.

A quick review of the names on that committee gives us fair warning of what to expect when they put their heads together on the Jones resolution. 

Other Republicans include: Virginia’s Rep. Randy Forbes- mentioned above- who sponsored the “In God We trust” bill. Adding to his glory is his legislation to designate the United States a Judeo-Christian nation, as well as his legislation declaring "religion a to be prerequisite for freedom." 

There’s Rep. Lou Gohmert from Texas who thoroughly embarrassed himself with the claim of Terror babies- that is, terrorists who impregnated women for the sole purpose of having terrorist prodigies. (It eventually fell to Anderson Cooper to reduce Gohmert to a political laughing-stock on live television.)

Meet Rep. Ted Poe, another Texan, who, in 2007, with exceedingly poor judgement, cited a long forgotten KKK Grand Wizard, Confederate Gen. Nathan Bedford Forrest (“Git thar fustest with the mostest.”) on the House floor. 

Poe’s other claims to fame include being a co-sponsor of H.R. 1503, a bill that requires a presidential candidate to present his birth certificate before being considered eligible to run. He also created a stir when he, along with a few other politicians, attempted “to make Christian prayers at all American military funerals mandatory, regardless of whether or not the deceased was Christian and with or without the consent of the deceased's family.” 

There’s Rep. Mike Pence -who sponsored legislation forever outlawing the largely abandoned FCC regulation required balanced broadcasting- The Fairness Doctrine- much to the applause of Murdoch, right wing hate radio and religious broadcasters  throughout the nation. Politico describes Pence’s war on Planned Parenthood as “a one-man crusade to deny all federal funding to the group that provides a range of health services to women, including abortions.”

Say hello to Rep. Steve King from Iowa who said of Obama,

"I don't want to disparage anyone because of their race, their ethnicity, their name - whatever their religion their father might have been," I'll just say this: When you think about the optics of a Barack Obama potentially getting elected President of the United States -- I mean, what does this look like to the rest of the world? What does it look like to the world of Islam? I will tell you that, if he is elected president, then the radical Islamists, the al-Qaida, the radical Islamists and their supporters, will be dancing in the streets in greater numbers than they did on September 11 because they will declare victory in this War on Terror. Additionally, his middle name (Hussein) does matter.

It's that kind of brilliance that's put the 112th session of Congress in a league of their own. With a sorry line-up like that, I’d say that Jones’ plan has a better than average success.

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