Congress And Its War Powers

From The American Thinker:

March 23, 2011


Congress and its war powers

Liam Ryan







I have just been reading the judgment made by Walter Dellinger (who was Assistant Attorney General and head of the Office of Legal Counsel under President Bill Clinton) with regards to President Clinton's intervention in Haiti. You can read his arguments here.



There are two things that are quite surprising, and I intend to break them down and discuss them with readers of AmericanThinker. I haven't yet been seduced by a powerful argument as to why President Obama's actions are "illegal." To the contrary, the United States finds itself in a position whereby the President has unilateral powers - at the interests of the UNSC. The United States army and military are at the disposal of the United Nations - and I think this is a reason for concern.



(1) The War Powers Resolution and the President



Dellinger argues that:



The War Powers Resolution (WPR) recognizes and presupposes the existence of unilateral Presidential authority to deploy armed forces "into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances." The WPR was enacted against a background that was "replete with instances of presidential uses of military force abroad in the absence of prior congressional approval."



(2) What is a constitutional war?



Dellinger argues that:



We believe that "war" does not exist where United States troops are deployed at the invitation of a fully legitimate government in circumstances in which the nature, scope, and duration of the deployment are such that the use of force involved does not rise to the level of "war." The President, together with his military and intelligence advisors, determined that the nature, scope and duration of the deployment were not consistent with the conclusion that the event was a "war."



I don't wish to sound overly cynical but Congress exists as a constitutional check on presidential power - including foreign affairs. Within last few decades, Congress has remained absolutely silent - which amounts to mute acquiescence towards greater executive control. The courts don't seem to define what is and what isn't permitted by the rather vague constitutional language. Moreover, the issue of "war" has been confined towards the political institutions of government to decide - as opposed to a great focus on legality.



President Truman authorized the Korean War without Congress in 1950. And ever since, in Iran, Lebanon, Libya, Panama, Somalia, Bosnia and Haiti there has been a greater unilateral executive authorization. Unless Obama is able to keep the intervention within the 60-90 day time limit, then I don't think he has much to worry about in terms of legality.



There is a cause for alarm. But, unlike most people, I think the root of the problem lies with US willingness for the United Nation to call the shots and - to some extent - dictate US foreign policy. We need to discuss multilateralism within the context of the United Nations, and then deal with Presidential powers.







Posted at 09:25 AM