Greenwald: Obama's new view of his own war powers

[vy65]

The article more focused on Yoo and Addington's warped gloss of Article II and the hypermodern sentiment that it is inappropriate for the Congress to limit the president, and that laws do not control his war making powers in general -- roughly, the president may make war at his sole discretion.

So maybe the cons ution is inconvenient and a bit outdated, but public officials still take an oath to uphold it, and courts still occasionally defer to it. If the president feels it don't apply to him, so much the worse for us.

Under the cons ution, I don't think you can argue that, because Congress has the "declaration of war power," the President is legally cir scribed to commit military forces absent Congressional authorization. This is responsive to a key point made by Greenwald (see below). This isn't an argument in defense of unfettered Executive power.

Who said it was? My own cite was related to WC's weird hypothesis about the president's "common law" attributes. Greenwald emphasizes the at ude of lawlessness and contempt for Congressional limitation in the executive (a brazenness very much in accord with your blase' dismissal of the plain meaning of the US cons ution, and also with the near universal tendency to prefer expedience above morality, the laws, etc,.) Who did you conceive yourself to be responding to, vy65?

Several critics of Obama have called his actions illegal, for starters. And also Greenwald's assertions such as the following:

Then there's the claim that the President, as "Commander-in-Chief" under Article II, is vested by the Cons ution with the unilateral power to make decisions about America's national security. Leave aside the fact that this premise was the crux of the Bush/Cheney worldview, one which every Good Democrat and Liberal vehemently condemned until recently. Further leave aside the fact that both Obama and Clinton as Senators and presidential candidates insisted exactly the opposite when they specifically argued that Congress could legally require Bush to obtain Congressional approval before bombing Iran and generally that Presidents have no power to start wars without a vote from Congress. It was true during the Bush years and it is true now that this is an absolute distortion of the "Commander-in-Chief" power of Article II.


To say that the President is "Commander-in-Chief" is not to say that he has the power to start wars. That power is expressly assigned to Congress under Article I, Section 8. The "Commander-in-Chief" power means nothing more than, once a war starts, the President is the top General with the power to decide how it is tactically prosecuted. I made this argument over and over during the Bush years because this warped Article II view was the principal Bush/Cheney argument for justifying almost everything they did, and to rebut it, I invariably cited the dissent written by Antonin Scalia -- and joined by John Paul Stevens -- in Hamdi v. Rumsfeld, in which the Surpeme Court ruled that the President, as "Commander-in-Chief," has the power to detain even American citizens as "enemy combatants."

Please show my "blase dismissal" of the Cons ution's. You can parrot what some idiot hack writes all you want - but I've yet to see a logical, much less articulated, thought from you on the matter.

[Winehole23]

Please show my "blase dismissal" of the Cons ution's.

My point was just that we shouldn't really take the declaration of war clause too literally because it can produce ridiculous results (like having to wait for congressional authorization before starting to mobilize defenses) and is outdated.

You can parrot what some idiot hack writes all you want - but I've yet to see a logical, much less articulated, thought from you on the matter.

Which idiot hack, please? What did I parrot?

[Winehole23]

(I thought you were complaining that I didn't have a thought.)

[vy65]

If I understand him right, WC's argument seems to be that the President has the cons utional power to declare war. That's re ed. Nothing in Article II gives him said power.

That being said, I think there is a smart way of articulating his argument. The way Article I and Article II are introduced are very different. Article I starts with "All legislative powers herein granted shall be vested . . ." while Article II begins with a reference to "the Executive Power" which is vested in the president. Article II doesn't have the limiting terms of "all legislative powers herein granted." Instead, the Executive Power is vested in the president - and one could easily interpret Article II to suggest that there are executive powers beyond those granted by Article II.

An expanisve view of the Executives CiC powers also aligns with the history and design of the cons ution. The Articles of Confederation were problematic because they gave the states to much power, to the detriment of the federal government. The Cons ution was designed to remedy that problem by empowering the federal government over the states (e.g., supremacy clause). Part and parcel of that design was the creation of a national army and navy (which didn't exist under the Articles of Confederation) and the installation of the president as the CiC. I don't think you can assert 1) this history of the cons ution and 2) that the cons ution limits the President's war-making powers.

That said, the declaration power is contained in Article I - Article II makes no reference to it. However, I also don't think much emphasis should be placed on this fact. The quoted section of Hamdi also notes that there was no standing army in the late 18th century. IOW, we should understand the declaration power in light of congress's power to raise an army via appropriations. 200 years later, we obviously live with a standing army - therefore, I think it wise to de-emphasize the necessity or legal strength of the declaration power. In other words, I think it not uncons utional for the President to commit troops, without a congressional declaration, to foreign military hostilities.

An other argument could be made as follows: if Article I supposes full congressional (meaning House + Senate) assent to military operations, the President would be unable to quickly mobilize troops to military operations. Neither Article I or II makes reference to the need (or lack thereof) of congressional authorization in the event the US is attacked. In other words, if you think that the Cons ution requires the President to obtain congressional authorization every time the military is mobilized - what happens when the US is attacked, and congress does not approve military action for hours or even days? Is the President supposed to sit back and watch?

Which part is blase?

[LnGrrrR]

What I mean is that the question of whether the President should commit military forces is a legal question revolving around his interpretation of the oath of office. I don't see what morals have to do with what I think is a legal question.

The problem is that you're conflating two different issues: commanding the military does not mean starting a war.

For instance, look at WWII for example. The Japanese attacked us, and the President able commanded the military forces to defend us. That doesn't mean he had the right to go to war without Congress though. He asked for an approval for war from Congress and got it.

The Cons ution IS rather black and white: the President doesn't have the right to commit the nation to war without Congressional approval. This key check is fundamental to preventing tyranny, imperialism, and lots of other things that we didn't approve of in the British government.

(That said, there are things, such as the Geneva Conventions Treaty that we talked about, that might modify the issues. But you asked for the wording in the Cons ution alone.)

There's a whole bunch of 'meta' arguments we could have (ie. at what step does something become "war") but those are different arguments.

[Winehole23]

(burp)

[LnGrrrR]

Which part is blase?

I don't know about "blase" but this part is incorrect:

Neither Article I or II makes reference to the need (or lack thereof) of congressional authorization in the event the US is attacked. In other words, if you think that the Cons ution requires the President to obtain congressional authorization every time the military is mobilized - what happens when the US is attacked, and congress does not approve military action for hours or even days? Is the President supposed to sit back and watch?

As noted above, war =/= military action, especially defending, as evidenced by WWII.

[vy65]

The problem is that you're conflating two different issues: commanding the military does not mean starting a war.

For instance, look at WWII for example. The Japanese attacked us, and the President able commanded the military forces to defend us. That doesn't mean he had the right to go to war without Congress though. He asked for an approval for war from Congress and got it.

The Cons ution IS rather black and white: the President doesn't have the right to commit the nation to war without Congressional approval. This key check is fundamental to preventing tyranny, imperialism, and lots of other things that we didn't approve of in the British government.

(That said, there are things, such as the Geneva Conventions Treaty that we talked about, that might modify the issues. But you asked for the wording in the Cons ution alone.)

There's a whole bunch of 'meta' arguments we could have (ie. at what step does something become "war") but those are different arguments.

I think semantics are legally relevant - and this goes to what you're getting towards the end of your post. And this is because the Cons ution isn't really helpful in this area. Article I gives Congress the power to declare war - and Article II makes the President the CiC. That's it. The Cons ution doesn't require a declaration of war everytime the military is deployed. It doesn't require Congressional authorization everytime the military is mobilized. When hostilities become war (whatever that means), only Congress has the power to make such a declaration and only the President has the power to command the troops. Article I does not say Congressional authorization is required prior to troop mobilization - and that's probably by design because a strong federal government that can quickly mobilize was part of the framers' intent.

You're absolutely right that war =|= military action, by necessity. But that doesn't help your position out because a Congressional declaration is only needed when hostilities are "war," that leaves room for the President to mobilize troops without Congressional authorization.

[LnGrrrR]

think semantics are legally relevant - and this goes to what you're getting towards the end of your post. And this is because the Cons ution isn't really helpful in this area. Article I gives Congress the power to declare war - and Article II makes the President the CiC. That's it. The Cons ution doesn't require a declaration of war everytime the military is deployed. It doesn't require Congressional authorization everytime the military is mobilized. When hostilities become war (whatever that means), only Congress has the power to make such a declaration and only the President has the power to command the troops. Article I does not say Congressional authorization is required prior to troop mobilization - and that's probably by design because a strong federal government that can quickly mobilize was part of the framers' intent.

Yes, it does get unclear very quickly. Tis is most likely due to the fact that the founders couldn't have guess at how quickly transportation/weaponry would evolve.

I wouldn't quite say a "strong federal government" was a key output of the Founding Father's intentions. They just wanted it to be strong enough to actually be useful; the federal government under the Articles was so weak as to be near laughable.

You're absolutely right that war =|= military action, by necessity. But that doesn't help your position out because a Congressional declaration is only needed when hostilities are "war," that leaves room for the President to mobilize troops without Congressional authorization.

Which is what this whole "Libya" thing is all about.

To me, "war" is not just a military action, but a mindset. War means the whole country (or at least, a solid majority) is in favor of actively attacking an enemy. It's a "draw a line in the sand" declaration, which we should force our leadership to do more often. By not forcing their hand, by not forcing them to declare war, we let them get away with more than they should. Hence all the international interventionism the past few decades.

Obviously, your thinking above leads to a slippery slope: if the President can mobilize troops without Congressional authorization, what are the limits? When is "too long" and how many is "too much"?

[vy65]

Which is what this whole "Libya" thing is all about.

To me, "war" is not just a military action, but a mindset. War means the whole country (or at least, a solid majority) is in favor of actively attacking an enemy. It's a "draw a line in the sand" declaration, which we should force our leadership to do more often. By not forcing their hand, by not forcing them to declare war, we let them get away with more than they should. Hence all the international interventionism the past few decades.

Obviously, your thinking above leads to a slippery slope: if the President can mobilize troops without Congressional authorization, what are the limits? When is "too long" and how many is "too much"?

This is way out of my expertise - I'd have to read up on some military law before I was comfortable saying what a legally viable definition of war is.

As for the slippery slope point - that's what the text says - and I think that's a good thing. For me, one key feature of the Cons ution was to empower the federal government to take decisive action (as opposed to obtaining a consensus of the states). And I don't think it's that big of a deal either.

As for the limits, I can think of a couple. The President can't commit military forces to a war without congressional authorization. Another limit would be that if Congress thinks the President is abusing his CiC power, they can de-fund parts of the military. There are some non-legal limits too - like public opinion and international relations - albeit these are probably far less effective.

[LnGrrrR]

This is way out of my expertise - I'd have to read up on some military law before I was comfortable saying what a legally viable definition of war is.

I don't think anyone really "knows". There's lots of opinion out there, legal and otherwise, put I know of no definite step between not-war and war.

As for the limits, I can think of a couple. The President can't commit military forces to a war without congressional authorization.

Which does us no good if we can't truly define what is and isn't a war, right?

Another limit would be that if Congress thinks the President is abusing his CiC power, they can de-fund parts of the military.

They can defund us, but that's a very explosive issue for legislators to use.

Turns out, it might actually happen if the new budget proposal doesn't get signed by... April 8th I believe it is. The military will be effectively working without pay. How that will play out, I have no idea.

There are some non-legal limits too - like public opinion and international relations - albeit these are probably far less effective.

Agreed.

[vy65]

Which does us no good if we can't truly define what is and isn't a war, right?

There's some case law on the matter which helps resolve this issue - like the Youngstown case cited in the Article. While fuzzy, I think there is a definition - but that's not what we were discussing initially.

They can defund us, but that's a very explosive issue for legislators to use.

Turns out, it might actually happen if the new budget proposal doesn't get signed by... April 8th I believe it is. The military will be effectively working without pay. How that will play out, I have no idea.

It'd probably be as explosive an issue as the underlying decision to commit troops which would have caused Congress to defund in the first place.

[LnGrrrR]

There's some case law on the matter which helps resolve this issue - like the Youngstown case cited in the Article. While fuzzy, I think there is a definition - but that's not what we were discussing initially.

Let me know what you think when you've read some more. Curious to see what you find.

It'd probably be as explosive an issue as the underlying decision to commit troops which would have caused Congress to defund in the first place.

Probably more so. It's one thing to commit troops, it's another thing to stop paying them.

Here's an article about it:

http://fcw.com/articles/2011/03/14/d...-military.aspx

In that plan, reported Richard Walker in Federal Computer Week, officials also anticipated requiring military personnel to continue to serve without pay while furloughing non-essential civilian personnel.

Funding a new war isn't quite the same as cutting funding from people working... I've got money reserved, but a lot of younger soldiers don't, and live paycheck to paycheck. They're the ones who will be hurt.

[LnGrrrR]

Here's the latest news:

http://warnerrobinspatriot.com/bookm...own-approaches-

U.S. House Republicans are sponsoring stop-gap legislation that would prevent any disruption in military pay during a government shutdown. However, the bill apparently would not apply to civilian workers.

[Wild Cobra]

Do you realize his post include quotes of SCOTUS opinions on the subject at hand, right?

Here's the entire opinion: http://law2.umkc.edu/faculty/project...law/hamdi.html

Yes, i know that. I also stated it contained other material. Wish you would have also quoted the relevant paragraph so I don't have to read the whole thing.

I might miss what you think is relevant.

---- edit add---

Read it. It still does not counter the points I make.

1. This is pertaining to use of military against civilians, that the president cannot.

2. It says the "explicit" use to declare war is in congress' hands. It still does not say the president cannot declare war.

[Wild Cobra]

I've disproved it multiple times, by pointing out US precedent and words from the very people who wrote the Cons ution on why they specifically didn't allow the President this power.

You just don't want to accept that. That's why you won't provide proof, because there's none to be found.

Why can't you just admit you're wrong?

You haven't disproved squat. vy65 seems to understand the separations and the fact that the executive power isn't addresses on this issue as a limiting one.

[ElNono]

You haven't disproved squat. vy65 seems to understand the separations and the fact that the executive power isn't addresses on this issue as a limiting one.

If I understand him right, WC's argument seems to be that the President has the cons utional power to declare war. That's re ed. Nothing in Article II gives him said power.

[ElNono]

1. This is pertaining to use of military against civilians, that the president cannot.

No.

2. It says the "explicit" use to declare war is in congress' hands. It still does not say the president cannot declare war.

Do you know understand what explicit means?

explicit:
fully and clearly expressed or demonstrated; leaving nothing merely implied; unequivocal

[Wild Cobra]

No.



Do you know understand what explicit means?

explicit:
fully and clearly expressed or demonstrated; leaving nothing merely implied; unequivocal

And it is in article I. Not article II.

[ElNono]

And it is in article I. Not article II.

Correct.

The closest argument that can be made is the scenario vy brought up, which would be the case of an attack or invasion. But in that case, it's not the US declaring war, but the enemy declaring war on the US. At that point, mobilizing troops is an obvious reaction. As LnGrrr pointed out, mobilizing troops is not the same as actually declaring a war.
Congress can, post-facto, and in case it can convene, declare war on the aggressor (given the duress, would be a formality).

I think that, unfortunately, 9/11 reflected a weakness addressing what happens when the enemy is not necessarily readily identifiable. And I think some really authoritarian people tried to wedge in some really bull interpretations that really have no ties to the original intent of the Cons ution, which was to grant Congress with the master decision to engage in war. I think the SCOTUS has been pretty clear cut about those arguments being bull .

[Wild Cobra]

Correct.

The closest argument that can be made is the scenario vy brought up, which would be the case of an attack or invasion. But in that case, it's not the US declaring war, but the enemy declaring war on the US. At that point, mobilizing troops is an obvious reaction. As LnGrrr pointed out, mobilizing troops is not the same as actually declaring a war.
Congress can, post-facto, and in case it can convene, declare war on the aggressor (given the duress, would be a formality).

I think that, unfortunately, 9/11 reflected a weakness addressing what happens when the enemy is not necessarily readily identifiable. And I think some really authoritarian people tried to wedge in some really bull interpretations that really have no ties to the original intent of the Cons ution, which was to grant Congress with the master decision to engage in war. I think the SCOTUS has been pretty clear cut about those arguments being bull .

Not at all. they didn't address the presidents power to declare war at all. It is a native function of the Commander in Chief's role.

Prove to me it is not an understood native function of the period and you win. It is pointless for you to argue any other point. If you are not going to argue against my reason for my belief, then you are wasting both out time.

Till then...

Bye.

[ElNono]

Not at all. they didn't address the presidents power to declare war at all. It is a native function of the Commander in Chief's role.

Prove to me it is not an understood native function of the period and you win. It is pointless for you to argue any other point. If you are not going to argue against my reason for my belief, then you are wasting both out time.

Till then...

Bye.

Run away lola...

Your belief is irrelevant. I'll take the interpretation of the Cons ution by actual judges over a parts-changer any day of the week and twice on Sundays.

[Wild Cobra]

Here's the latest news:

http://warnerrobinspatriot.com/bookm...own-approaches-

If it doesn't apply to civilians supporting the military, it does little good now, doesn't it. How will Obama keep his wars going?

[Wild Cobra]

Run away lola...

Your belief is irrelevant. I'll take the interpretation of the Cons ution by actual judges over a parts-changer any day of the week and twice on Sundays.

Prove to me it is not an understood native function of the period and you win. It is pointless for you to argue any other point. If you are not going to argue against my reason for my belief, then you are wasting both out time.

[ElNono]

Prove to me it is not an understood native function of the period and you win. It is pointless for you to argue any other point. If you are not going to argue against my reason for my belief, then you are wasting both out time.

You are the one making the claim, the onus is on you to find the supporting legalese backing it up.

Again, what you 'believe' is irrelevant if you can't back it up.
It wouldn't be the first time that your 'beliefs' are based on ignorance (black surgeons anyone?)

I don't care about 'winning'. I care about perusing through informed opinions. You came to support a fairly novel doctrine, which has been shot down by legal experts. I don't want your opinion, I want other legal experts supporting your claim. So far you've presented none.