On Sunday night's 60 Minutes program, Scott Pelley opened an interview with Defense Secretary Leon Panetta with the question, "How many countries are we currently engaged in a shooting war?" Surprised by the question, Panetta, who laughed heartily as if Pelley had just told him a really humorous knock-knock joke that tickled his funny bone, responded 'that's a good question. I have to stop and think about that." Panetta proceeded to answer "we're going after al Qaeda wherever they're at.... Clearly, we're confronting al Qaeda in Pakistan, Yemen, Somalia, North Africa...." In case you're wondering, yes, Panetta confirmed that US troops are in Pakistan.
Pelley's question could not have been more clear just as Panetta's answer was unequivocal. What neither Pelley nor Panetta, who received a law degree from Santa Clara University Law School, mentioned was that for the US to be 'engaged in a shooting war,' not to mention more shooting wars than he could recount, without congressional approval is not only unconstitutional but is a clear violation of the War Powers Act of 1973.
After the debacle in Vietnam, with the American people dispirited and exhausted from a bloody, divisive war, the 93rd Session of Congress recognized the need to restore its Constitutional authority to declare war and oversight on national security and foreign policy issues with adoption of the War Powers Act of 1973. The Act, which was also intent on improving accountability requirements for the Executive Branch, necessitated a congressional override of President's Nixon's veto.
In lieu of a declaration of war, the Act requires three things of the president: "in every possible instance" to consult with Congress before introducing US troops "into hostilities," to report to Congress within 48 hours of committing troops and to withdraw US troops by 60 days. In addition, while presidents have cited congressional funding votes as tacit endorsement of their actions, the Act (Sec 8 (a)(1)) specifically prohibits any appropriation from being "intended to constitute specific statutory authorization." Since its adoption in1973, the spirit and, we now know, the legal mandate of the Act has been consciously challenged, undermined, dismissed, dodged or violated in an on-going erosion of Congress' constitutional authority.
Military action against Libya began on March 19 with the US in command with several submarines and frigates firing Tomahawk cruise missiles. into Libya with the presidents of Zimbabwe, Uganda and Namibia in opposition.
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That day, President Obama announced the deployment of US forces stating his action did not include any 'troops on the ground' and notified Congress that its authorization was not necessary.
As congressional criticism of the action grew, the president announced the 'transfer' of command to NATO. On the 60th day of US participation, the president had still not sought Congressional approval and was no doubt aware that the Act does not distinguish between troops on the ground or air or naval attacks.
On Friday, June 3rd, the US House of Representatives rebuked the president in a bipartisan resolution offered by Speaker John Boehner for committing US forces to Libya without congressional approval. Boehner's resolution was approved on a 268-145 vote, with 45 brave Democrats voting to reprimand the president.
Even prior to Panetta's admission Sunday evening, the constitutional questions for Obama's new global occupation by U.S. combat troops in potential hot-spots on every continent, participting in specious counterterrorism chases across the planet, remained problematic. Confirmation Sunday evening that US armed forces are engaged militarily without prior congressional approval requires some Member of Congress, any Member of Congress, to demand an immediate full-scale congressional inquiry.
If the President of the United States, known as a constitutional scholar and after having been rebuked once already, persists in repeating past indiscretions, what are the implications for the Act to retain any trace of its legal authority or for the country to maintain any semblance of a constitutional democracy?