Myth #1 - "The WPA (WPR) allows the POTUS to commit troops without prior Congressional approval as long as he goes to Congress within xx number of days."
From the WPR, Section 2 (Purpose and Policy)
(c) 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.
Passed after the Vietnam war, Congress' intention with the WPR was to regain control of 'declaring war' while still allowing the POTUS to quickly respond to certain situations. Situations in which time would be of the essence and consultation with Congress would cause an unacceptable delay.
Intervening in a civil war in Libya does not meet any of the 3 scenarios in which the POTUS can commit forces without prior Congressional approval. Additionally, the President had enough time to consult with our NATO allies, the Arab League and the UN. Historically both parties have adhered to the philosophy that domestic debate regarding US military action 'stopped at the water's edge.' In other words, we can debate all we want within the US about sending troops into harm's way, but we don't allow the debate to go international. Unfortunately, it appears the current administration took the exact opposite approach this time. The debate did stop at 'water's edge'...it never made it onto US soil.
Myth #2 - The US is obligated to support all NATO sponsored actions due to treaty obligations. Since NATO approved the Libyan mission and then tasked the US for combat support, we are obligated by treaty to comply.
The Constitution does not acquiesce Congress’s authority for declaring war to treaty obligations. The Senate is charged with the responsibility of treaty ratification, but the entire Congress is charged with the responsibility of declaring war. Codifying a higher standard for going to war compared to ratifying treaties was not an accidental over-sight by the framers.
The WPR specifically addresses treaties in Section 8;
(a) Authority to introduce United States Armed Forces into hostilities or into situations wherein involvement in hostilities is clearly indicated by the circumstances shall not be inferred—…(2) from any treaty heretofore or hereafter ratified unless such treaty is implemented by legislation specifically authorizing the introduction of United States Armed Forces into hostilities or into such situations and stating that it is intended to constitute specific statutory authorization within the meaning of this joint resolution.
Our treaties with NATO and the UN were not implemented by legislation specifically authorized to introduce US armed forces.
(b) Nothing in this joint resolution shall be construed to require any further specific statutory authorization to permit members of United States Armed Forces to participate jointly with members of the armed forces of one or more foreign countries in the headquarters operations of high-level military commands which were established prior to the date of enactment of this joint resolution and pursuant to the United Nations Charter or any treaty ratified by the United States prior to such date.
Paragraph (B) allows for US forces to operate within “high-level” commands without further Congressional approval. Unless prohibited in other sections of the WPR, this section would allow US forces to operate within the NATO command structure at a 'high-level'. While we do have folks working at these levels, we also have folks working at much lower levels. Besides, the WPR prohibits these 'high level' assignments under certain circumstance that we'll look at later. Circumstances that are exactly what we're doing with NATO.
(c) For purposes of this joint resolution, the term "introduction of United States Armed Forces" includes the assignment of member of such armed forces to command, coordinate, participate in the movement of, or accompany the regular or irregular military forces of any foreign country or government when such military forces are engaged, or there exists an imminent threat that such forces will become engaged, in hostilities.
Paragraph (C) clearly bans US non-combat participation, like we are now doing in Libya, without Congressional approval. This clause directly rebukes one portion of the President’s claim that we aren’t actually engaged in hostilities, the portion that he hasn’t violated the WPR because all we’re doing is providing support to the combat portion of the operation. The WPR clearly prohibits us from coordinating with foreign countries involved in hostilities. The WPR clearly prohibits us from participating in the movement of forces engaged in hostilities. Yet we are doing exactly that...we are helping coordinate the mission and we're helping move the implements of war around the theatre.
By the President's creative interpretation of 'hostilities' NATO isn't using 'hostile fire' to protect innocent civilians. Except every day NATO reports the results of what they call 'air strikes' using things like laser guideed and GPS guided bombs. Reports from all sides detail the number of stikes, locations of strikes and number of people killed...all apparently by non-hostile actions. Also ignore the fact that our troops that are not (allegedly) engaged in hostilities in Libya are being paid Hostile Fire\Imminent Danger pay for some reason.
While I think our intervention in Libya was ok, (and at the time most Americans and members of Congress appeared to agree) the President violated, and is still violating, the WPR and the Constitution. It's bazar that President Obama, the guy who taught Constitutional law and opined as a candidate that the POTUS can't commit forces without Congressional approval, has chosen this path. Had he gone to Congress, instead of the Arab League for instance, he would have easily gotten approval. The Dems were all for war to show they aren't suffering from hypogonadism and the Reps were all for war because, well they're pretty much for all US intervention anytime, anywhere. We could have avoided this entire debate had the President simply abided by the WPR.
Recently we learned that President Obama, like President Bush, received conflicting legal guidance regarding committing US forces to combat. Unlike GWB, BHO chose not to consult Congress and violated the WPR. Now who's shredding the Constitution?
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