On the Air Again with Tim Corrimal and Friends – Episode 161

… Or, Better Late Than Never.

Well, due to a whole variety of events conspiring to prevent me from posting this yesterday, I wasn’t able to get to it until now. So, without further ado: Episode 161 of the Tim Corrimal Show is now up!

On this week’s show, Tim and I were joined two old friends: our Middle East/North Africa expert, Sarah Cosgrove of Mashrabiyya (@s_a_cosgrove on Twitter), and Andy Wienick (@awienick on Twitter). We primarily discussed the situation in Libya and current line-up of potential Republican candidates for president, and Tim once again gave us the best “Foxisms” of the past week (always worth a listen). On the subject of Libya and the “Arab Spring” revolutionary movements throughout the Middle East and North Africa, you simply must read “Current Middle East Uprisings” on Sarah’s blog. Next to Juan Cole, Sarah is the best source I know on what’s going on over there.

And speaking of Libya, I guess I was a little … um, intemperate … when it came to one Rep. Dennis Kucinich (D-OH), who went on a predictable anti-Obama tirade last week:

A hard-core group of liberal House Democrats is questioning the constitutionality of U.S. missile strikes against Libya, with one lawmaker raising the prospect of impeachment during a Democratic Caucus conference call on Saturday.

…

Kucinich, who wanted to bring impeachment articles against both former President George W. Bush and Vice President Dick Cheney over Iraq — only to be blocked by his own leadership — asked why the U.S. missile strikes aren’t impeachable offenses.

Yeah, that kind of got under my skin. Like, to the point where I suggested that Rep. Kucinich should seriously consider taking early retirement for having made such a outrageous suggestion.

Let me be clear about something. My problem with Rep. Kucinich isn’t over his opposition to the Libyan operation. Nor is it over his, and other liberal Democrats’, argument that the President should have gotten Congressional authorization before committing troops to the UN-imposed No Fly Zone over Libya. I happen to think he’s wrong on both points, as I explained on the show, but there’s certainly room to disagree.

What I cannot fathom is how anyone who purports to believe in small-d democracy could even begin to suggest that there’s a basis for impeachment – meaning, of course, overriding the results of the last presidential election – just because certain members of Congress disagree with the President over a very difficult question of constitutional law. To me, raising the specter of impeachment in these circumstances is disgusting. It’s not an argument that one can make in good faith, and it’s blatantly undemocratic.

It’s worth taking a little time to review the specific constitutional issue involved here. When Kucinich and others say the President was required to get congressional approval before authorizing military action against Libya, presumably they base that argument on Article I, Section 8 of the Constitution, which vests in Congress, not the Executive, the power “[t]o declare War.” And that certainly makes sense in the traditional situation where we are attempting to determine whether another country has done something to the United States sufficient to justify our going to war against it. Even after the attack on Pearl Harbor, Pres. Roosevelt went before Congress to ask for a declaration of war against the Empire of Japan.

But it’s hardly clear that every use of military force requires a formal declaration of war by Congress under Article I, because Article VI of the Constitution defines “the supreme Law of the Land” to include, in addition to the Constitution itself and all duly enacted federal laws, “all Treaties made, or which shall be made, under the Authority of the United States … .” So, say, for instance, the United States enters into a treaty that requires us to come to the defense of an ally if it’s attacked by another country. That’s what treaties of alliance typically do, and that was hardly a concept that was unknown to the framers of our Constitution. But that treaty obligation – the obligation to use our military to defend an ally – would be part of the “supreme Law of the Land” under Article VI; and so it arguably would enable (or maybe require) the President to authorize the use of force independent of Congress’ power to declare war under Article I, Section 8.

Of course, the United Nations itself is a treaty organization, and the UN Charter is a treaty that the United States is party to. So the UN Charter is, in Article VI terms, a “Treat[y] made … under the Authority of the United States,” and is therefore part of the “supreme Law of the Land.” Moreover, Chapter VII of the UN Charter authorizes the Security Council to “determine the existence of any threat to the peace, breach of the peace, or act of aggression and [to] make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.” UN Charter, Art. 39. Article 41, in turn, authorizes the Security Council to take certain non-military actions to try to establish peace or bring an end to aggression, and Article 42 provides:

Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.

So the question arises: If the UN Security Council authorizes military action under Article 42 to stop aggression, as it did when it authorized the No Fly Zone in Libya pursuant to Resolution 1973, can the President of the United States, as the official directly responsible for seeing to it that the United States lives up to its treaty obligations, send American troops into conflict under Article VI of the Constitution, without obtaining a declaration of war under Article I?

While constitutional scholars might argue that point till the end of time, it’s worth noting that Congress – the very entity who’s constitutional authority Rep. Kucinich claims to be defending – Congress has already provided what it thinks is the answer to that question, via the United Nations Participation Act. Specifically:

The President is authorized to negotiate a special agreement or agreements with the Security Council which shall be subject to the approval of the Congress by appropriate Act or joint resolution, providing for the numbers and types of armed forces, their degree of readiness and general location, and the nature of facilities and assistance, including rights of passage, to be made available to the Security Council on its call for the purpose of maintaining international peace and security in accordance with article 43 of said Charter. The President shall not be deemed to require the authorization of the Congress to make available to the Security Council on its call in order to take action under article 42 of said Charter and pursuant to such special agreement or agreements the armed forces, facilities, or assistance provided for therein: Provided, That, except as authorized in section 287d-1 of this title, nothing herein contained shall be construed as an authorization to the President by the Congress to make available to the Security Council for such purpose armed forces, facilities, or assistance in addition to the forces, facilities, and assistance provided for in such special agreement or agreements.

22 U.S.C § 287d (emphasis supplied).

(Note that Article 43 of the UN Charter, as opposed to Article 42, involves long term peace keeping operations, for which U.S. participation does require Congressional approval under 22 U.S.C. § 287d.)

In other words, while there may be an open question as to whether Article VI gives the President, acting pursuant to treaty obligations, the power send U.S. troops into a military conflict without Congressional approval, Congress itself consented to the use of American troops without prior Congressional approval in the event the UN Security Council acts under Article 42 of the UN Charter. So, at least as to the specific situation where the President supplies troops to the UN under Article 42, Congress itself believes the President has the power to do so on his own. And given that the issue here is the power of Congress vis-à-vis the President, I should think Congress’ own opinion on the matter should carry particular weight.

So getting back to Rep. Kucinich: In light of the foregoing, how could anyone argue in good faith that a difference of opinion over the scope of the President’s authority to commit troops to the UN No Fly Zone could amount to an impeachable offense? If you really believe in elections and democracy and all that, the simple answer is: You can’t.

© 2011 David P. von Ebers. All rights reserved.