Where does it lie, with the president, or the Constitution?
I’m very concerned that the president has been replacing officers sworn to the latter with those loyal to him at the top of the chain. In which case things could get very ugly if we have to find out how far down the ranks we have to go to find some loyal to their oath of service.
We saw a smaller-scale version of this with Bill Clinton, when he attempted to prevent his Secret Service agents from providing testimony about his behavior, as though they were some sort of praetorian guard. The potential Constitutional crisis Donald Sensing describes would be much more serious.
Who here thinks that’s even remotely a concern? I could see down the road a US that has become so dysfunctional that constitutional matters don’t matter or a president who is extremely popular with a military that has been reviled and alienated. But today, the military is not going to support Obama over the Constitution.
I found the Donald Sensing article which Rand refers to above.
I gather that’s the basis for the concern about the loyalty of the US military. I don’t think Obama is the president who can cross that particular “red line”.
I don’t know if I have the same degree of concern, but we already have many interpretations of the Constitution that go well beyond what the framers intended.
Obama has moved 5 destroyers into the region. It only takes one to launch its missiles to effectively declare war on Syria. I think the odds are low this would happen, but I’d put the likelihood a bit higher than zero and hopefully less than .2.
So that’s what he meant Friday when he said “But as I’ve already said, I have had MY MILITARY and our team look at a wide range of options.”
If the chain of command says “Go” without bothering to mention that Congress said “No,” the issue won’t even come up. How closely do we really think the troops follow the news, and through whom do they get it?
In my experience the troops follow the news pretty religiously. When I was a LT I got it from drudge, michelle malkin, foxnews, cnn, instapundit, here, among many others. I’m a little bit of an outlier, but drudge, fox news, and CNN were pretty commonly accessed amongst my military peers for instant news.
Personally, I don’t think it’s an issue. I expect he is deferring to Congress so they will vote “No” and he can back down with grace. I suspect he would rather look weak politically than militarily, and he doesn’t really want to do it.
If the individual commanders reject the orders, they better be sure
these are illegal orders. I would imagine, the staff JAGs at 6th fleet
and EUCOM would have figured these out.
I could imagine some high level meetings at EUCOM to try and determine the bounds of orders and action, but, if the orders come down, unless Fleet Jag countermands, it’s unlikely shipboard will reject these orders.
Of course, it’s not my professional butt on the line, but if I knew that the Congress had said “No”, then I’d refuse the order on the grounds that it is unlawful.
It’s times like these that make me glad that I didn’t stay in the Army and keep my nose to the grindstone. Assuming I could get the necessary tickets punched (ha!), I’d hold flag-rank now, and have to deal with knotty questions about what my oath of service would require of me.
Yeah, I know– hypotheticals are safer than the real thing. I can only hope that I would have some cattle to go with the hat.
Now, I merely get to seethe about what The Zero and his clique are doing to the country.
Every President since the War Powers Resolution was passed, in 1973, has declared it unconstitutional and both Clinton and Reagan violated it. I think once someone gets to sit in the big chair.. it goes to their head.
Scenario: Sept 9, Congress returns from recess. On Sept 10th, Congress denies Obama an authorization of force. On Sept 11, 2013, the United States ambassador to Lebanon is taken hostage. The hostage takers call it “Benghazi II”. Israel phones the US to say that they have firm intelligence that in this hostage scenario, Assad himself is calling the shots.
The President meets with his advisors. He says he will give an Oval Office address in which he states he knows Assad is behind the hostage taking, and that Assad has four hours to release the ambassador unharmed. If the ambassador is not released, US forces will [….].
I didn’t complete the scenario because I want to ask a question: does anyone think that if Congress denies of authorization of force in Syria on Sept 10th, it would have any bearing on how the President may legally respond to Sept 11th’s Benghazi II?
For example, could the President say: “If the ambassador is not released unharmed in four hours, US forces will immediately begin to decimate the Syrian Army artillery and tank divisions?
Could he say “If the ambassador is killed, the US will engage in all-out regime change in Syria; US marines will be raising the Stars and Stripes in Damascus by the end of the month; and as for Assad himself, well, he can look to Libya and Iraq to see examples of what might happen.”
So taking this to Congress for a vote is a one-shot deal? Egad Bob, if the scenario changes as you propose do you think Congress is going to sit on their hands? What a ridiculous hypothetical. Glad to see you haven’t lost your edge.
I’m sure Congress would eventually vote again. Probably not in four hours. In any case, my scenario isn’t intended to be realistic, but rather, it is intended to test Donald Sensing’s claim that if Congress denies an authorization of force and then Obama decided to use force anyway, a constitutional crisis would result. Obama claims he has the authority to use force even if Congress does not authorize it and my scenario is intended to show why: because events can change faster than Congress can react. All presidents and all congresses have recognized this – it is one of the reasons we maintain the institution of the presidency.
Aside from the above argument: the War Powers Resolution give the President 48 hours before he even has to notify Congress that he has gone to war, and 60 days to pursue a war before Congress must authorize it. The strikes Obama reportedly is considering might be concluded within 48 hours, and would certainly be concluded soon after, long before the 60 day deadline. I don’t see how a Congressional vote of “no” on authorizing force would negate the War Powers resolution, so I don’t see why a constitutional crisis would result from a no vote.
Bob, your scenario is based on changing the legal situation to one in which the President can’t legally order a strike into one in which he can, so of course it works. The President can respond on his own initiative to attacks on the US and its vital interests, or to protect those interests from attack.
Look at it as being the world’s policeman. The policeman can respond to crime (the President’s prerogative), but he can’t go out and arrest someone who’s not committing a crime without having an authorization in the form of a warrant, or in the President’s case, Congressional approval. What Obama is saying is that he can arrest whoever he wants (initiate hostilities) without having a warrant, whether they’ve done anything against us or not.
In part he seems to be claiming that it’s his job to enforce international law and defend its integrity – even though the UN has not authorized such a measure, either. Can the President start a war just because he wants to, because there is always some international treaty or other that’s being violated. There’s probably a convention on the right of pets to have meaningful lives, and of course trade violations are frequent. Can a President bomb a country for predatory shoe marketing? Further, in the case of the chemical weapons convention, there are no penalty clauses.
George, do you think Congress’ vote on Syria will invalidate the War Powers Resolution?
If not, then I think Obama has the legal authority to go to war for 60 days for any reason he wants. If so, then I’d like to know how this act of Congress regarding Syria will take into account the wide variety of circumstances for which the President would have to act fast, before consulting Congress.
The President’s decision to consult Congress could produce a political problem or a political victory, but it will not produce a Constitutional crisis or any other sort of legal problem.
To clarify: the above presumes that Congress does not authorize the use of force in Syria.
I think the War Powers Act allows Obama to take action but only until congress has a vote. If at any time congress votes not to go to war, Obama can’t ignore that vote.
It is one thing not to seek congressional approval before launching a war to help AQ take over Syria and another to ignore congress voting no and going to war anyway.
There will be a constitutional crisis if congress votes no but Obama goes to war anyway. But I don’t think this will happen. Going to congress, knowing they will vote no, allows Obama to save face. He was just talking tough and had no intentions to ever do anything about red lines. Obama called his own bluff.
Congress voting no works out really well for Obama. He doesn’t have to go to war, something he wasn’t going to do anyway at least until he got called out on being a wimp and having to defend his ego. And Obama gets to say Republicans (doesn’t matter if Democrats also vote no) are responsible for the deaths of women and children just like he did during the campaign.
The Republican response should be they didn’t want to fight on the same side as AQ.
Hmmm. Looks like you’re right and I’m wrong, regarding the law.
Checking http://www.law.cornell.edu/uscode/text/50/1544
50 U.S.C. 1544(c) says that Congress can tell the President to remove forces from foreign hostilities at any time, even within the 60 day period. Thank you.
I’m humbled by my wrongness, but here’s one more opinion:
50 U.S.C. 1544(c) refers to a “concurrent resolution”, but concurrent resolutions lack the force of law. Doesn’t that seem dodgy to you? I think this law ought to be challenged in court! I don’t think the nation would fall apart if the Supreme Court actually weighed in — far from being a crisis, I think it would be helpful. It would only be a crisis if the President disregarded the Supreme Court, and I don’t think any modern President would do that.
Rep. Justin Amash has been going over this on his twitter account the last few days.
The upshot is that, in opposition to current widespread belief, the War Powers Act does not authorize unilateral action by the President except in cases of self-defense.
The actual relevant section of the War Powers Act is 1541c.
http://www.law.cornell.edu/uscode/text/50/1541
“(c) Presidential executive power as Commander-in-Chief; limitation
The constitutional powers of the President as Commander-in-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.”
So, the President only has authorization under 1 or 2 from Congress, or 3 in the case of self-defense.
Obviously, there is a dispute, even though 1541c looks straightforward. Is the opposing argument that 1541c is merely laying the out the justification for 1544b?
https://twitter.com/repjustinamash/status/373237629162364928
“@bromanw That applies if U.S. entered conflict for emergency defensive purposes. Read sec 1541(c)(3) of WPR.”
someguy, as usual, has it exactly right.
1541c is very clear to the circumstances in which a President can introduce troops to hostility. Going by the numbers:
1) Syria has not declared war on the US
2) Unlike Bush, he hasn’t gotten Congressional approval yet, unless he claims the use of chemical weapons in Syria expands the general war on terror.
3) It will be interesting to see the pretzel logic that suggests a chemical weapons attack on Syria civilians is an attack on the US, any of its territories or possessions, or its armed forces.
1544 simply provides Congress the ability to say “enough is enough” if the President lawfully acts “pursuant to section 1543 (a)(1)”. If he acts unlawfully, there is always Article II Section 4.
1543 says that if 1541c1 is not the excuse for hostilities, then the President has to bring to Congress (specifically the Speaker of the House) a report within 48 hours explaining exactly what authority he thinks he is using. In such a case, what won’t fly are claims of Executive Privilege in withholding information.
Bob-1, I think your scenario relies way too heavily on the idea that the administration would agree that an attack on Sept 11, 2013 mirroring the attack on Sept 12, 2012 was Benghazi II, The Legend of Curly’s Gold, if for no other reason than it would force them to finally admit that Benghazi I was a terror attack and that they didn’t respond properly when it originally happened.
Bob-1,
An attack on a country’s diplomatic staff is generally regarded as an act of war. If we’d gone “Roman” on the Iranians back in ’79, I don’t think anybody would have dared to attack an American diplomat or his staff ever again.
Instead, we’ve screwed around and screwed around, and we’ve had embassy bombings, attacks of one kind or another on our diplomatic staff, and most recently the horrors at Benghazi.
Much as I despise The Zero and all his works, if he did go “Roman” on those responsible for your hypothetical attack on US diplomats, I for one would be cheering him on. Kill them all, and leave no stone standing atop another in their home base and the surrounding territory.
But does The Zero have the cojones to do it? No.
More like he’d blame it on the Tea Party or the sequester and use the attack as an excuse to push for more gun control.
Anyone who thinks any member of the United States military is going to refuse a “lawful order” from the Commander in Chief is whistling past the graveyard of history.
Look at it from the soldier’s point of view. “If I refuse this order, I’ll end up being ass-raped in Leavenworth for the rest of my life, and Beetle Bailey in the bunk next to mine will do it anyway. If I obey, all I have to do is live with the guilt — and my retirement check will buy the booze I need to do that.” Easy choice. Click. Bang.
I would hope that if President Stupidity maneuvered himself and the military into a corner such that the military has to make a choice between what Congress said and what the President ordered, that the Congress would quickly impeach the President – whoever he/’she is – rather than risk that kind of a revolution.
The House might very well impeach — but Harry Reid would simply refuse to notice that it happened, and no trial would ensue.
And I do not see a revolution resulting from just one more egregious abuse of power in Washington. Most people, even the well-informed, have figured out that’s just what they do.
If President Mom Jeans puts the military in a bind where they are given one order by him and another direction from Congress and President lady parts starts to cashier generals until he gets his orders carried out, the military is going to be in a squeeze. That squeeze can easily be severe enough such that the military fractures.
To avoid all that I would hope even “Cowboy Poetry” Reid would act to save the Republic.
Congress is going to vote no? What are people smoking?
Democrats are going to vote with their President as a matter of party-loyalty-when-it-counts. Apart from the odd Member of Congress from Ohio with a South Slavic last name, what Democrat is ever going to vote this down and ever expect any backing from the Democratic Party? We are not talking about some minor disagreement on a highway bill — this is a grave national security matter, and I can’t see any Democrat apart from the exception I mentioned voting no.
Some Republicans will vote no, dunno, like Rand Paul and maybe Ted Cruz. But the “adults” — your McCain, Graham, on down the line, are going to back the President — they did so when Clinton wanted to bomb a South Slavic country and the only person to object was a Democrat from Ohio with a South Slavic name . . .