Kucinich: Obama's Impeachable Offense

[Neally]

Also wondering when Biden will start pushing for impeachment:

 

[TraneWreck]

That's nonsense. That would be effectively changing the procedure to amend the Constitution to the decision of the U.N. Security Council, or indeed (if one takes failure to veto as the same as consent) the authority of the U.S. Ambassador to the U.N. alone. The Constitution specifies the clearly burdensome process required to amend itself.

No, it wouldn't. Use of force by the United States government would still require Congressional approval. That approval was given when the UN Charter was ratified. COngress willingly stipulated to the provisions that require member-states to fulfill Security Counsel votes. The process is still the same: Congress needs to agree to military action.

Again, that may or may not be true, but your argument is the incorrect approach. THe issue is whether (1) that amounts to a delegation of Congressional authority and (2) whether that power is delegable.

Were I arguing this case, I would say that granting the UN such authority was an Unconstitional delegation of Congressional power, but that will revolve around how a ratified international charter operates within the context of American law. Generally we just ignore our international obligations, but here Obama would be looking to that international law to justify his behavior.

It could be an interesting debate, but it will never materialize. We will just ignore it and move on.

The U.N. Charter does not authorize Obama's use of force in Libya. (Again, a very strong argument can be made that it prohibits such use. Article II prohibits intervention into domestic affairs unless there is some threat to international peace, but that's another discussion.)

Who makes that determination?

Chapter VII Article 39:

The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security

The Security Council determined that Khaddafi's threats and subsequent actions were sufficient to merit peacekeeping intervention:

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.

Seems pretty clear that this is within the discretion of the UN and they behaved according to the procedure laid out in the charter.

The other issue is NATO's role, which is another mess.

Nonsense. The legal argument against it is, as I have said, that the U.N. Charter does not authorize military intervention in Libya. The U.N. resolution that does that was not ratified by Congress. Period. The U.N. resolution does not supplant or displace Congress' authority to declare war.

The UN Charter, which has been ratified by the US Congress, requires that member-states carry out the decisions of the Security COuncil. THe Security Council voted to engage in military action in Libya. The president, as the executive with the duty to execute the laws of the land, acted pursuant to the Congressionally approved requirements of the UN Charter.

Again, that may or may not be right, but you haven't come remotely close to providing an actual legal argument against this.

Only if you first concede the point that the U.N. Charter authorizes this intervention in Libya--or constructively that Congress' ratification of the U.N. charter simultaneously substitutes for Congressional ratification of all resolutions the U.N. might pass in the future.

The UN Charter authorizes the Security COuncil to decide what is and is not a threat to the peace. The Security Council decided Qaddafi was threatening the peace and that immediate military intervention was necessary.

Why wouldn't Congressional ratification of the Charter approve future decisions by the Security Council?

So far your answer is "Constitution, Just cause."

Sorry, such an argument will never even make it to the SCOTUS because it is preposterous.

Then surely you can do a better job of rejecting it. You're just running on your opinion and have only referred to statutes and charters in the vaguest of ways.

 

[respect]

Let's just find a Republican that is not too bad and vote Obama out of office.

Good luck with that.

 

[Ziggurat]

I think that's likely correct, but you're not proving it here.

THe UN Charter does not override the Constitution, but it's been ratified by Congress and is the law of the land. If Congress, when ratifying, consented to future acts on the part of the security council, then there might be a legal argument that a resolution to use automatically triggers American action.

That doesn't make sense. The resolution itself did not require action. So how can that possibly trigger a requirement to action on our part? And under what reading of either the UN charter or our own law does a UNSC resolution ever automatically trigger US military action? Under what reading of the constitution is such a thing even permissible? It's one thing to relax Congress' exclusive power to declare war by giving the president some leeway for short-term military action. But if a UN resolution can automatically trigger US action, then you've transferred that power not simply from the legislative branch to the executive branch on a contingent basis, but you've transferred it completely out of the government, on an apparently permanent basis. That cannot be correct.

 

[JoeTheJuggler]

No, it wouldn't. Use of force by the United States government would still require Congressional approval. That approval was given when the UN Charter was ratified.

No, it wasn't.

 

[BeAChooser]

Also wondering when Biden will start pushing for impeachment:

For some reason your link isn't working, so just in case ...

Joe Biden in 2007 - "I make it clear to the President, that if he takes this nation to war in Iran without Congressional approval, I will make it my business to impeach him. That's a fact. That is a fact." Here: http://www.youtube.com/watch?v=_dRFJ6CF2Mw&feature=player_embedded#at=17

 

[TraneWreck]

No, it wasn't.

Then cite the legal precedent that justifies your assertion.

If you'll notice I'm not so much arguing against your position as your method of arguing. I haven't dug into the Charter in any detail, nor the legislative history surrounding its ratification.

This is an international law question, and if you can find a case dealing with the balance between Constitutional provisions and ratified treaties, you would be able to reject the argument. I'm even willing to bet there's such a case out there, but common sense ain't going to get the job done.

 

[TraneWreck]

That doesn't make sense. The resolution itself did not require action. So how can that possibly trigger a requirement to action on our part? And under what reading of either the UN charter or our own law does a UNSC resolution ever automatically trigger US military action? Under what reading of the constitution is such a thing even permissible? It's one thing to relax Congress' exclusive power to declare war by giving the president some leeway for short-term military action. But if a UN resolution can automatically trigger US action, then you've transferred that power not simply from the legislative branch to the executive branch on a contingent basis, but you've transferred it completely out of the government, on an apparently permanent basis. That cannot be correct.

I posted a rundown of the UN Charter provisions that seem to demand member state action in compliance with resolutions.

I agree that allowing the president to take automatic action consistent with Security Council resolutions is a delegation of Constitutional authority vested in Congress that cannot be delegated.

But it's one thing to think that and another to prove it with legal citation. Given the way the Charter reads, one can make the argument that Congress gave the president authority to execute decisions made by the Security Council.

 

[Ziggurat]

This is an international law question, and if you can find a case dealing with the balance between Constitutional provisions and ratified treaties, you would be able to reject the argument. I'm even willing to bet there's such a case out there, but common sense ain't going to get the job done.

Shouldn't treaties simply have the force of law, not the force of the constitution? After all, treaties get ratified in essentially the same manner as law. But the constitution has a larger hurdle than that for amendments. So I can't see how one could argue that a treaty can overrule the constitution. If it could, then the government could simply override the constitution by acting through a treaty. Simply find a country willing to sign a treaty with us whereby we promise to do something unconstitutional, and presto! the constitution poses no barrier at all.

But it's not credible that the constitution has such an obvious loophole that has been unnoticed for so long. So I must conclude that treaties can only have the force of law, and must remain subservient to (and abide by) the constitution.

 

[Ziggurat]

I posted a rundown of the UN Charter provisions that seem to demand member state action in compliance with resolutions.

When the resolution itself only authorizes action but makes NO specific demands on any member state to take action, then it seems we can be perfectly "in compliance" while doing nothing. So it doesn't relieve the President of any other obligations he might have to Congress before he can act.

 

[TraneWreck]

Shouldn't treaties simply have the force of law, not the force of the constitution? After all, treaties get ratified in essentially the same manner as law. But the constitution has a larger hurdle than that for amendments. So I can't see how one could argue that a treaty can overrule the constitution. If it could, then the government could simply override the constitution by acting through a treaty. Simply find a country willing to sign a treaty with us whereby we promise to do something unconstitutional, and presto! the constitution poses no barrier at all.

Treaties become federal law upon ratification. If the treaty is found to be in conflict with Constitutional provisions, obviously the treaty is out, but the very question at hand is whether the two do conflict.

The argument is that Congress, by ratifying the treaty, consented to future military action in the manner laid out in the UN Charter.

As another example, look at the NATO agreement:

Article V

The Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all and consequently they agree that, if such an armed attack occurs, each of them, in exercise of the right of individual or collective self-defence recognised by Article 51 of the Charter of the United Nations, will assist the Party or Parties so attacked by taking forthwith, individually and in concert with the other Parties, such action as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area.

http://www.nato.int/cps/en/natolive/official_texts_17120.htm

If someone attacks England, does the president need to go to Congress to respond, or by signing that Treaty, has Congress effectively given that authority preemptively?

It seems to me that there's a good argument that by signing the North Atlantic Treaty and ratifying it, Congress has pre-approved military action in the event a member nation is attacked. The UN Charter, under this argument, operates the same when. Instead of an attack against a member nation automatically approving the use of force, it's the decision of the Security Council.

In both cases Congress has approved the relevant treaties, so it's not simply a matter of ignoring them.

Again, I see arguments on both sides, but if you want to argue that a SC vote doesn't automatically give the president the right to use our armed forces, then you need to argue that he similarly cannot immediately respond to an attack on a fellow NATO country.

But it's not credible that the constitution has such an obvious loophole that has been unnoticed for so long. So I must conclude that treaties can only have the force of law, and must remain subservient to (and abide by) the constitution.

There's no loophole. Either the argument that decisions of the Security Council have been preemptively approved by Congress and are therefore consistent with the Constitution, or they aren't and that's not a viable argument. I think the latter is more likely, and only a decision from the SC would give us a definitive answer, but "that doesn't seem right" isn't a substantial argument whether I say it or you do.

 

[JoeTheJuggler]

Then cite the legal precedent that justifies your assertion.

What are you talking about?

You've claimed that Congress was able to anticipate and authorize military intervention in Libya in 2011 back in 1945.

I have no burden of proof to show that Congress authorized intervention in Libya in 2011 when they ratified the UN Charter in 1945.

Again, it's a preposterous, nonsensical argument.

 

[Neally]

For some reason your link isn't working, so just in case ...

Joe Biden in 2007 - "I make it clear to the President, that if he takes this nation to war in Iran without Congressional approval, I will make it my business to impeach him. That's a fact. That is a fact." Here: http://www.youtube.com/watch?v=_dRFJ6CF2Mw&feature=player_embedded#at=17

Thanks, this is the one I was trying to post: http://www.youtube.com/watch?v=Adpa5kYUhCA Basically says the same, since Bush didn't get permission from Congress, he should be impeached. Where's Biden now that we need him?

 

[TraneWreck]

What are you talking about?

You've claimed that Congress was able to anticipate and authorize military intervention in Libya in 2011 back in 1945.

I have no burden of proof to show that Congress authorized intervention in Libya in 2011 when they ratified the UN Charter in 1945.

Again, it's a preposterous, nonsensical argument.

THey've done so with NATO. That charter was signed in 1949. If England is attacked in 2049, does President Justin Beiber need Congressional approval to retaliate?

Why or why not?

 

[Ziggurat]

It seems to me that there's a good argument that by signing the North Atlantic Treaty and ratifying it, Congress has pre-approved military action in the event a member nation is attacked. The UN Charter, under this argument, operates the same when. Instead of an attack against a member nation automatically approving the use of force, it's the decision of the Security Council.

In both cases Congress has approved the relevant treaties, so it's not simply a matter of ignoring them.

I think I better understand your argument, and it makes more sense to me now. But I still think there's a problem with it, at least in this case. The NATO treaty creates an explicit obligation to take military action when another member is attacked. One can say that we have a similar explicit obligation to act "in compliance" with UN resolutions. But unlike the NATO treaty, this UNSC resolution does not actually demand that the US, or any other member state for that matter, actually take any military action. So we can be in complete compliance while doing nothing. Unless the UNSC resolution explicitly demands military action (which they did not here), then I can't see it as being equivalent. This UN SC resolution does not actually require US action, it only permits it. The NATO treaty does more than permit action if another member is attacked, it requires action.

 

[TraneWreck]

I think I better understand your argument, and it makes more sense to me now. But I still think there's a problem with it, at least in this case. The NATO treaty creates an explicit obligation to take military action when another member is attacked. One can say that we have a similar explicit obligation to act "in compliance" with UN resolutions. But unlike the NATO treaty, this UNSC resolution does not actually demand that the US, or any other member state for that matter, actually take any military action. So we can be in complete compliance while doing nothing. Unless the UNSC resolution explicitly demands military action (which they did not here), then I can't see it as being equivalent. This UN SC resolution does not actually require US action, it only permits it. The NATO treaty does more than permit action if another member is attacked, it requires action.

Sure, so on a factual level the argument may fail regardless, but there's still that interesting Constitutional/International Law question out there. It seems like we have a tradition of allowing Congress to pre-justify the use of force through treaty obligations.

I think we've sort of decided to ignore that as a nation, and just engage in military operations whenever we feel like it. This concerns me no matter what party holds the Executive Branch, and as I've said, Obama has shown his hypocricy whether or not we come to a satisfying legal conclusion on this matter.

In the event of an impeachment or some type of legal proceeding (which seems to be an extraordinarily unlikely event), this tangled mess of conflicting authority would be relevant.

 

[sarge]

I was initially disinclined to accept the argument that Congress, by ratifying a treaty that might require military intervention, Congress has provided advanced consent.

I might have changed my mind. The structure of the NATO Charter specificallly allows for a circumstance whereby the US would have engaged in war (presumably) with the Soviet Union without first gaining the approval of Congress or even possibly the President.

It seems reasonable to argue that the UN Charter might demand the same of us, no matter how hard I try to see an iron-clad argument to the contrary.

 

[Ziggurat]

Sure, so on a factual level the argument may fail regardless, but there's still that interesting Constitutional/International Law question out there.

Yes, if the SC required us to act, then I see potential legal issues that haven't really popped up yet.

I think we've sort of decided to ignore that as a nation, and just engage in military operations whenever we feel like it.

The origin of this, I think, was nuclear weapons. The existence of nuclear weapons, and particularly ICBM nukes, created an existential military threat which Congress would never be able to act on in time, and so some shift in war-making authority had to be transferred to the presidency out of dire necessity, though that never seems to have been properly handled by constitutional clarification. And that shift has bled out into a lot of other situations, and the opposite end of the spectrum (ie, small conflicts) seems to have been the most affected in practice.

This concerns me no matter what party holds the Executive Branch, and as I've said, Obama has shown his hypocricy whether or not we come to a satisfying legal conclusion on this matter.

Hey, don't forget Biden!

 

[JoeTheJuggler]

I was initially disinclined to accept the argument that Congress, by ratifying a treaty that might require military intervention, Congress has provided advanced consent.

I might have changed my mind. The structure of the NATO Charter specificallly allows for a circumstance whereby the US would have engaged in war (presumably) with the Soviet Union without first gaining the approval of Congress or even possibly the President.

But would those circumstances also have been in conflict with U.S. law? Remember, the president can act without congressional authorization in cases where, as Obama said, there is an actual and imminent threat to the U.S.

But neither NATO nor the UN has the authority to require us to act against the Constitution. And this notion that a Congress in 1945 can ratify a commitment for all future Congresses to give tacit authorization to use military force goes flat out against U.S. law.

Again, the War Powers Act says the president can use military force in 3 circumstances: 1) Congress declares war, 2) Congress authorizes it by statute, or 3) in the state of emergency caused by an attack on the U.S.

 

[JoeTheJuggler]

It seems like we have a tradition of allowing Congress to pre-justify the use of force through treaty obligations.

Why does it seem that way?

Again, the law is pretty clear that the president can act without congressional authorization in cases where the U.S. is being attacked. (I think that's the NATO situation you're describing.)

To claim that Congress has the power to give an open-ended authorization for all time for the use of force if ordered by an international treaty organization is to say that Congress, by a simple majority, has the authority to effectively amend the U.S. Constitution. But that would be a flagrant violation of the Constitution's provisions for amending itself.

And remember, the War Powers Act even puts a time limit on how long the president can use military force without the consent of Congress in the case of emergency.