The National Defense Authorization Act headed to the Senate after a significantly bipartisan passage in the House today contains a caveat added to remind President Obama of his responsibility to get permission from Congress before using military force.
“This is not the King’s army,” said Rep. Scott Rigell (R-Va.), who introduced the NDAA amendment in the House Rules Committee.
“In 1973, Congress passed the War Powers Resolution which states in section 2: ‘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) national emergency created by attack upon the United States, its territories or possessions, or its armed forces,'” the amendment states.
“In its April 1, 2011, Memorandum to President Obama, the Office of Legal Counsel concluded: ‘President Obama could rely on his constitutional power to safeguard the national interest by directing the anticipated military operations in Libya—which were limited in their nature, scope, and duration—without prior congressional authorization,'” it continues. “On June 15, 2011, in a letter to the Speaker of the House of Representatives from the Department of Defense and Department of State, the Departments informed Congress that ‘The President is of the view that the current U.S. military operations in Libya are consistent with the War Powers Resolution and do not under that law require further congressional authorization, because U.S. military operations are distinct from the kind of “hostilities contemplated by the Resolution’s 60 day termination provision”.’’’
“The precedence set by the Executive Branch in its assertion that Congress plays no role in military actions like those taken in Libya is contrary to the intent of the Framers and of the Constitution which vests sole authority to declare war in the Legislative Branch.”
The defense reauthorization passed 315-108 under a wide-ranging veto threat from Obama. Just 18 Republicans and 90 Democrats voted against the appropriations bill.
Rigell was behind legislation last year that attempted to defund Operation Odyssey Dawn, the U.S. military intervention in Libya, under the contention that Obama violated the War Powers Resolution. That bill died in committee with no co-sponsors.
The congressman, a Marine Corps Reserve veteran whose district includes large military populations in Norfolk and Hampton, stressed that the U.S. employed nearly 1,000 pieces of ordinance, including Tomahawk cruise missiles and Joint Direct Attack Munition smart bombs, during the operation — bringing it to the level of requiring congressional authorization.
“It is not constitutional for any one person, including the Commander-in-Chief, to have the unilateral authority to engage U.S. forces when there is no direct threat to the United States,” Rigell said. “There has been a constant drift of constitutional interpretation in Washington, and that drift has only gone in one direction: elevating the authority of the Executive Branch.”
Even with the timing a day after the White House announced it would provide military support to the Syrian opposition, Rigell said his amendment doesn’t take a position on Syria but used the Libyan example to highlight the need for consistent rule of law.
“Any U.S. involvement in Syria must be fully compliant with the War Powers Act and should be debated in Congress,” added Rigell.
At the beginning of the 113th Congress, Rep. Chris Gibson (R-N.Y.) reintroduced a bill to make over the War Powers Resolution and “reassert the constitutional responsibility of Congress regarding the use of force.”
“While the president has the constitutional authority to take action to defend our cherished way of life, the Congress was empowered to decide when we would go to war. However, this process has become out of balance over recent decades, with Presidents of both parties not complying with the provisions as originally intended,” Gibbs said when he introduced his legislation, which has 32 co-sponsors, in January.
Obama has dodged questions about whether he thinks the 1973 resolution is constitutional or not.
On Friday, Obama sent a report to House Speak John Boehner (R-Ohio) and Senate President Pro Tempore Pat Leahy (D-Vt.) detailing the status of U.S. actions in Afghanistan, Somalia, Yemen, and Cuba (the president now on fire about the evils of Guantanamo reported that combat-equipped U.S. forces “continue to conduct humane and secure detention operations for the approximately 166 detainees”).
The notice also said about 180 U.S. personnel are deployed to Niger to aid the French effort against Islamists in Mali and about 100 military personnel are still trying to find guerrilla leader Joseph Kony in Uganda. In Kosovo, the U.S. still contributes about 750 personnel to the NATO-led Kosovo Force.
“Approximately 690 military personnel are assigned to the U.S. contingent of the Multinational Force and Observers, which have been present in Egypt since 1981,” Obama added.
On May 17, about 30 additional U.S. forces were deployed “to further support the security of U.S. personnel in Libya.”
There was no mention of Syria in the memo sent to Congress, but Boehner and Leahy also received a classified addendum containing “additional information about regional security operations.”
“I have directed the participation of U.S. Armed Forces in all of these operations pursuant to my constitutional and statutory authority as Commander in Chief (including the authority to carry out Public Law 107-40 and other statutes) and as Chief Executive, as well as my constitutional and statutory authority to conduct the foreign relations of the United States,” Obama concluded. “Officials of my Administration and I communicate regularly with the leadership and other Members of Congress with regard to these deployments, and we will continue to do so.”