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Here's a conversation between Sen. Jeff Sessions (R-AL) and Defense Secretary Leon Panetta during a Senate Armed Services Committee hearing about possible military action in Syria:
"We're worried about international legal basis, but no one's worried about the fundamental constitutional legal basis that this Congress has over war," Sessions protested. Referring to the last year's bombing raids by the United States and United Nations allies in Libya, Sessions said: "We were not asked, stunningly, in direct violation of the War Powers Act, whether or not you believe it's constitutional, [the Libyan raids] certainly didn't comply with it. We spent our time worrying about the UN, the Arab League, NATO, and too little time worrying about the elected representatives of the United States," Sessions said. "Do you think you can act without Congress and initiate a No Fly Zone in Syria, without congressional approval?" he asked Panetta.
"Again, our goal would be to seek international permission and we would come to the Congress and inform you and determine how best to approach this," Panetta replied. "Whether or not we would want to get permission from the Congress, I think those are issues I think we would have to discuss as we decide what to do here." Sessions made it clear he was not pleased with what he heard.
"Well, I'm almost breathless about that," the Alabama lawmaker replied. "Because what I heard you say is, we are going to seek international approval and then we'll come and tell the Congress what we might do, and we might seek Congressional approval. I want to say to you, that's a big deal, wouldn't you agree? You served in the Congress," he reminded Panetta, a U.S. representative from California from 1977-1993. "Wouldn't you agree that would be pretty breathtaking for the average American? So would you like to clarify that?"
" I've also served with Republican Presidents and Democratic Presidents who have always reserved the right to defend this country if necessary," replied the former CIA director, who succeeded Robert Gates as Defense Secretary in 2011. Panetta did not explain how last year's bombing in Libya was, or a potential military intervention in Syria might be, a defense of the United States.
"But before you do this you would seek permission of the international authorities?" Sessions asked.
"If we are working with an international coalition and we're working with NATO we would want to be able to get appropriate permissions in order to be able to do that. That's something that all of these countries would want to have — some kind of legal basis on which to act."
"What kind of legal basis are you looking for? What entity?" asked Sessions.
"If NATO made the decision to go in, that would be one," said Panetta. "If we developed an international coalition beyond NATO then some kind of U.N. Security Resolution..."
"So you are saying NATO would give you a legal basis ... and an ad hoc coalition of the United Nations would provide a legal basis?" Sessions asked. "Well who are you asking for the legal basis from?"
"If the UN passed a Security Resolution as it did with Libya, we would do that," the Defense Secretary answered. "If NATO came together as it did in Bosnia, we would rely on that, so we have options here if we want to build the kind of international approach dealing with the situation."
"I'm all for having international support," Sessions conceded, "but I'm really baffled by the idea that somehow an international assembly provides a legal basis for the United States military to be deployed in combat. I don't believe it is close to being correct. They provide no legal authority. The only legal authority that is required to deploy the United States military is the Congress and the President and the law and the Constitution." Panetta's response was interesting more for what it did not say than for what he said.
"Let me for the record be clear again," [Panetta] replied. "When it comes to the national defense of this country, the President of the United States has the authority under the Constitution to act to defend this country and we will."
It's about time somebody stepped up to challenge Panetta's type of thinking. First of all, bombing Syria is NOT defending America, as Panetta seems to believe. What threat is Syria posing to the United States ? What threat did Libya pose to the United States ? The trouble in those countries is/was INTERNAL to those countries. Secondly, how is it at all acceptable to cite the United Nations or NATO as a legitimate basis for pursuing war, as Panetta does, while bypassing Congress ? There is nothing in our Constitution or law to support that view. Our Constitution gives Congress the power to declare war. We also have the 1973 War Powers Resolution, which grants the President some leeway in waging war. Here's a brief description of the the War Powers Resolution:
The War Powers Resolution of 1973 (50 U.S.C. 1541-1548) is a federal law intended to check the power of the President in committing the United States to an armed conflict without the consent of Congress. The resolution was adopted in the form of a United States Congress joint resolution; this provides that the President can send U.S. armed forces into action abroad only by authorization of Congress or in case of "a national emergency created by attack upon the United States, its territories or possessions, or its armed forces."
The War Powers Resolution requires the President to notify Congress within 48 hours of committing armed forces to military action and forbids armed forces from remaining for more than 60 days, with a further 30 day withdrawal period, without an authorization of the use of military force or a declaration of war. The resolution was passed by two-thirds of Congress, overriding a presidential veto.
The War Powers Resolution was disregarded by President Clinton in 1999, during the bombing campaign in Kosovo, and again by President Obama in 2011, when he did not seek congressional approval for attack on Libya, arguing that the Resolution did not apply to that action. All presidents since 1973 have declared their belief that the act is unconstitutional.
Outside of repelling an attack or direct threat on the United States, the War Powers Resolution does not grant the President the authority to unilaterally wage war. But as noted, both Pres. Clinton and Pres. Obama have done exactly that. You could also say Pres. Bush did it when he drone bombed Pakistan. Congress gave no express approval for that, though Congress did authorize the Bush wars in Afghanistan and Iraq. Obama has expanded drone bombing without congressional approval by bombing Pakistan, Yemen, Libya, and Somalia.
There have been questions raised over the constitutionality of the War Powers Resolution, but I'm not going to get into those today. Regardless of the constitutionality question, the War Powers Resolution stands as American law (even though Presidents ignore it).
Some Republicans have had enough of it. Representative Walter Jones (R-N.C., left) introduced House Concurrent Resolution 107, calling for the impeachment of the President if he declares war without congressional approval. HCR 107 states:
Expressing the sense of Congress that the use of offensive military force by a President without prior and clear authorization of an Act of Congress constitutes an impeachable high crime and misdemeanor under article II, section 4 of the Constitution.
Whereas the cornerstone of the Republic is honoring Congress’s exclusive power to declare war under article I, section 8, clause 11 of the Constitution: Now, therefore, be it Resolved by the House of Representatives (the Senate concurring), That it is the sense of Congress that, except in response to an actual or imminent attack against the territory of the United States, the use of offensive military force by a President without prior and clear authorization of an Act of Congress violates Congress’s exclusive power to declare war under article I, section 8, clause 11 of the Constitution and therefore constitutes an impeachable high crime and misdemeanor under article II, section 4 of the Constitution.
Democrats have also called waging war without congressional authorization unconstitutional. Rep. Dennis Kucinich (D-OH) stated that Obama's Libyan air strikes were an "impeachable offense", and in the irony of ironies, in 2007, some guy named Barack Obama said, “The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.” DOH !!!!
I wonder if Obama will call for his own impeachment ???