Presidential War Powers and Congressional Authorisation for Acts of War

The US Executive Branch claims to have the power to take aggressive and voluntary military action in the absence of a clear and present danger to the USA itself. It is relying in part upon a string of legal opinions stretching back decades which have been crafted and offered by the Justice Department's Office of Legal Counsel (OLC) to make this case. But the perplexing dimension of this situation is that the Executive Branch will not share these "secret" legal opinions with either the American public or even the US Congress itself. It holds them secret and refuses to disclose its justifications for claiming the right to use voluntary military force abroad independent of the US Congress and without getting Congressional approval/authorisation before taking such actions. Is this a tolerable situation or is Star-Chamber Justice and Secret Law becoming more normal in America? If so, is that a good or bad constitutional direction for America to go in?

https://theintercept.com/2018/04/14...t-legal-justification-even-congress-cant-see/

What was the point of fighting a revolution against absolute monarchy and imperial prerogative if you then create a de facto imperial presidency with unfettered power rooted in secret law in order to make war at the president's pleasure?

So the question for debate is, "Can the executive branch legitimately hide as secret its legal justifications for using voluntary military force abroad at the president's discretion and thus deny both the American people and their representatives and senators in Congress the ability to contest those legal justifications?"

Cheers.
Evilroddy.

Evilroddy said:

The US Executive Branch claims to have the power to take aggressive and voluntary military action in the absence of a clear and present danger to the USA itself. It is relying in part upon a string of legal opinions stretching back decades which have been crafted and offered by the Justice Department's Office of Legal Counsel (OLC) to make this case. But the perplexing dimension of this situation is that the Executive Branch will not share these "secret" legal opinions with either the American public or even the US Congress itself. It holds them secret and refuses to disclose its justifications for claiming the right to use voluntary military force abroad independent of the US Congress and without getting Congressional approval/authorisation before taking such actions. Is this a tolerable situation or is Star-Chamber Justice and Secret Law becoming more normal in America? If so, is that a good or bad constitutional direction for America to go in?

https://theintercept.com/2018/04/14...t-legal-justification-even-congress-cant-see/

What was the point of fighting a revolution against absolute monarchy and imperial prerogative if you then create a de facto imperial presidency with unfettered power rooted in secret law in order to make war at the president's pleasure?

So the question for debate is, "Can the executive branch legitimately hide as secret its legal justifications for using voluntary military force abroad at the president's discretion and thus deny both the American people and their representatives and senators in Congress the ability to contest those legal justifications?"

Cheers.
Evilroddy.

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Canada evolved out and away from the Monarchy, Americans went to war against them. Having rejected the monarchy the first thing they did was build a palace for the president to live in.

He is as isolated if not more so than the Royals, I have shaken hands with both Prince Charles and Prince Phillip but never been closer than 7 meters to a president (Nixon when a demonstrator jumped at him out of a crowd with a knife).

The president of the United States, Queen Elizabeth are the world leaders who are piped into a room with their own marching music and in the US's case the rather bombastic "pomp and ceremony"

You didn't get rid of the Monarchy, you simply added elections and changed the king every now and then

Blame Congress and the courts, both have studiously avoided a decisive legal reckoning on this question.

I personally would rather see Congress authorize all military action, unless a foreign military threat is existential and imminent.

Evilroddy said:

The US Executive Branch claims to have the power to take aggressive and voluntary military action in the absence of a clear and present danger to the USA itself. It is relying in part upon a string of legal opinions stretching back decades which have been crafted and offered by the Justice Department's Office of Legal Counsel (OLC) to make this case. But the perplexing dimension of this situation is that the Executive Branch will not share these "secret" legal opinions with either the American public or even the US Congress itself. It holds them secret and refuses to disclose its justifications for claiming the right to use voluntary military force abroad independent of the US Congress and without getting Congressional approval/authorisation before taking such actions. Is this a tolerable situation or is Star-Chamber Justice and Secret Law becoming more normal in America? If so, is that a good or bad constitutional direction for America to go in?

https://theintercept.com/2018/04/14...t-legal-justification-even-congress-cant-see/

What was the point of fighting a revolution against absolute monarchy and imperial prerogative if you then create a de facto imperial presidency with unfettered power rooted in secret law in order to make war at the president's pleasure?

So the question for debate is, "Can the executive branch legitimately hide as secret its legal justifications for using voluntary military force abroad at the president's discretion and thus deny both the American people and their representatives and senators in Congress the ability to contest those legal justifications?"

Cheers.
Evilroddy.

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Yesterday, White House Deputy Asst. Director of Communications, Raj Shah (I think it was him though it could have been another government spokesperson) was asked about proof that Assad used chemical weapons in Douma. His response was that the Trump Administration was not going to divulge intelligence information that might possibly put intelligence people/operations in danger.

IN A MAJOR NOD TO IRONY AND BULL****, yesterday President Stable Genius pardoned Scooter Libby!

Evilroddy said:

So the question for debate is, "Can the executive branch legitimately hide as secret its legal justifications for using voluntary military force abroad at the president's discretion and thus deny both the American people and their representatives and senators in Congress the ability to contest those legal justifications?"

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No. I do not believe that such obfuscation is legitimate. Even if the information that led to military action is to remain classified and even if there is no need for Congressional approval, Congress should be immediately be informed and remain briefed about the fact pattern and legal arguments acting as the rationale for unilateral military action (at the very least the House and Senate Armed Services Committees should be briefed).

Evilroddy said:

The US Executive Branch claims to have the power to take aggressive and voluntary military action in the absence of a clear and present danger to the USA itself. It is relying in part upon a string of legal opinions stretching back decades which have been crafted and offered by the Justice Department's Office of Legal Counsel (OLC) to make this case. But the perplexing dimension of this situation is that the Executive Branch will not share these "secret" legal opinions with either the American public or even the US Congress itself. It holds them secret and refuses to disclose its justifications for claiming the right to use voluntary military force abroad independent of the US Congress and without getting Congressional approval/authorisation before taking such actions. Is this a tolerable situation or is Star-Chamber Justice and Secret Law becoming more normal in America? If so, is that a good or bad constitutional direction for America to go in?

https://theintercept.com/2018/04/14...t-legal-justification-even-congress-cant-see/

What was the point of fighting a revolution against absolute monarchy and imperial prerogative if you then create a de facto imperial presidency with unfettered power rooted in secret law in order to make war at the president's pleasure?

So the question for debate is, "Can the executive branch legitimately hide as secret its legal justifications for using voluntary military force abroad at the president's discretion and thus deny both the American people and their representatives and senators in Congress the ability to contest those legal justifications?"

Cheers.
Evilroddy.

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Well now, we are either a government of law or we are not. The answer is obvious. Change is what we hope for./
/

Rogue Valley said:

Blame Congress and the courts, both have studiously avoided a decisive legal reckoning on this question.

I personally would rather see Congress authorize all military action, unless a foreign military threat is existential and imminent.

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Rogue Valley:

Thank you for a very clear answer off of which I will spring-board to a wider analysis.

Yes, there is no doubt that the US Congress and the judiciary have shown underwhelming enthusiasm for defending the separation of powers and the system of checks and balances provided by the US Constitution with respect to presidential and executive power, but that should not distract us from the discussion about the legality and constitutionality of what the executive branch is doing by withholding legal opinions on the justification for using voluntary military force abroad without congressional authorisation. How can the people, the free press and most importantly the Congress itself evaluate the validity of these justifications if they are withheld through secrecy laws from outside judicial review and examination? It seems that the US executive branch has constructed a Joseph-Heller-like Catch-22 to block challenges to its assertion of power in military matters which is worthy of Yossarian on his best days in the military.

Ultimately the responsibility lies not with the Congress, not with the judiciary nor with the executive branch either. The ultimate responsibility lies with the US electorate and it is the people who must demand the end to secret law, executive over-reach and institutional abuses to their constitution.

Cheers.
Evilroddy.

Felis Leo said:

No. I do not believe that such obfuscation is legitimate. Even if the information that led to military action is to remain classified and even if there is no need for Congressional approval, Congress should be immediately be informed and remain briefed about the fact pattern and legal arguments acting as the rationale for unilateral military action (at the very least the House and Senate Armed Services Committees should be briefed).

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Felis Leo:

Thank you for a clear and succinct response. I am not sure about Congress delegating its responsibilities to congressional committees which are too often opaque to public scrutiny, but otherwise I concur with your analysis.

Cheers.
Evilroddy.

Fearandloathing said:

Canada evolved out and away from the Monarchy, Americans went to war against them. Having rejected the monarchy the first thing they did was build a palace for the president to live in.

He is as isolated if not more so than the Royals, I have shaken hands with both Prince Charles and Prince Phillip but never been closer than 7 meters to a president (Nixon when a demonstrator jumped at him out of a crowd with a knife).

The president of the United States, Queen Elizabeth are the world leaders who are piped into a room with their own marching music and in the US's case the rather bombastic "pomp and ceremony"

You didn't get rid of the Monarchy, you simply added elections and changed the king every now and then

Click to expand...

A nice contrast between Canadian and American political evolution and a clear elaboration of the presidential-King notion of US executive power. However you did not address the question of secrecy regarding OLC justifications for enhanced presidential war powers which contradict those powers described in the US Constitution. Congress and only Congress has the exclusive power to declare war and thus to initiate voluntary military action by the US military abroad. Once declared the US president is in charge of running and managing the war effort but the office of the president does not have the power to initiate hostilities without a real, imminent and unavoidable threat to the US (not its interests but to the US itself) being present. Syria neither in 2017 nor in 2018 was such a threat. Nor was Syria under the Obama administration. This over-reach goes all the way back to the Korean Conflict of 1950-1953.

So what do you think?

Cheers.
Evilroddy.

DaveFagan said:

Well now, we are either a government of law or we are not. The answer is obvious. Change is what we hope for./
/

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Dave Fagan:

The Rule of Law is always threatened by the Rule of Man and the Cult of Personality, be it Hussein's Iraq, Putin's Russia or modern America under charismatic presidents like Teddy Roosevelt, John F. Kennedy or Donald Trump. That is not a comparison of those men's worth as leaders but rather is a measure of their charisma and their forceful political wills upon their nations.

Cheers.
Evilroddy.

Risky Thicket said:

Yesterday, White House Deputy Asst. Director of Communications, Raj Shah (I think it was him though it could have been another government spokesperson) was asked about proof that Assad used chemical weapons in Douma. His response was that the Trump Administration was not going to divulge intelligence information that might possibly put intelligence people/operations in danger.

IN A MAJOR NOD TO IRONY AND BULL****, yesterday President Stable Genius pardoned Scooter Libby!

Click to expand...

Risky Thicket:

Secrecy and withholding OLC justifications? Any opinions?

Cheers.
Evilroddy.

Evilroddy said:

A nice contrast between Canadian and American political evolution and a clear elaboration of the presidential-King notion of US executive power. However you did not address the question of secrecy regarding OLC justifications for enhanced presidential war powers which contradict those powers described in the US Constitution. Congress and only Congress has the exclusive power to declare war and thus to initiate voluntary military action by the US military abroad. Once declared the US president is in charge of running and managing the war effort but the office of the president does not have the power to initiate hostilities without a real, imminent and unavoidable threat to the US (not its interests but to the US itself) being present. Syria neither in 2017 nor in 2018 was such a threat. Nor was Syria under the Obama administration. This over-reach goes all the way back to the Korean Conflict of 1950-1953.

So what do you think?

Cheers.
Evilroddy.

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What do I think.

I think that is way off topic about a post about keeping the trappings of royalty.

But, now you raise the issue, let's see. In my lifetime the US has been to war seven times spanning 1949 and Korea through to Syria today. I don't recall any declarations of war by congress, or maybe they did for Korea.

How long in Afghanistan now?

The constitution doesn't seem to mean much. I noticed how well it protected the rights of the accused in Guanatanimo Bay. Rule of law got shredded for convenience.

Now you see why most non-Americans laugh at your spouting the constitution this and the constitution that. It hasn't stopped very much, and didn't prevent a civil war. It can be sidestepped at any opportunity it seems. And in the meantime your system is by far he most corrupt in the modern world. The US constitution has probably protected more criminals than helped victims

Evilroddy said:

Dave Fagan:

The Rule of Law is always threatened by the Rule of Man and the Cult of Personality, be it Hussein's Iraq, Putin's Russia or modern America under charismatic presidents like Teddy Roosevelt, John F. Kennedy or Donald Trump. That is not a comparison of those men's worth as leaders but rather is a measure of their charisma and their forceful political wills upon their nations.

Cheers.
Evilroddy.

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As I have stated in other posts, all ISMs (Corporatism, Republicanism, Socialism, Buddhism, Capitalism) are interpreted by their leadership. Dogma is not the prime mover and we certainly agree on that.
/

Evilroddy said:

Risky Thicket:

Secrecy and withholding OLC justifications? Any opinions?

Cheers.
Evilroddy.

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Evil, I am not equivocating, but concerning Trump's attack on Syria it would have been wise (something I will never accuse Trump of being) to either wait for UN verification of Assad using chemicals in Douma or at the very least Trump should have met with the Senate Foreign Relations Committee and the House Armed Services Committee.

Having secret power that even Congress can't know about that justifies attacking sovereign nations reminds me of Dean Wormer of Faber College putting Delta House on "double secret probation."

Trump is way over his head in **** he brought down on himself. I firmly and honestly believe that Trump is incapable of understanding the likely ramifications of attacking Syria. Certainly Trump was unaware of the secret powers that might have justified his attack. I could be easily convinced that Trump still does not understand the separation of powers and probably has never read the Constitution. In walks John Bolton. Bolton ain't no dummy. He has forgotten more than Donald Trump ever knew. Bolton doesn't give 3 ****s about Trump.

A month ago Trump wanted the US out of Syria and suddenly (coincidentally as Trump and his administration are having the worst week ever, week after week) Trump jumps the gun and decides to take an action that will be meat to his base but not so much to the rest of the nation or the world. Attention - for the moment - is diverted to Syria and what will known as Operation Desert Stormy. His justification? A double secret power so secret Congress can't know about it. I have a big problem with that. I don't think I am the only one.

Note: I have forever advocated nullification of the War Powers Act and a return to the Constitution for a number of reasons. Only Congress has the power to declare war. The President of the United States does not have the power to attack a sovereign nation.

For decades Congress has not had the balls to nullify the War Powers Act because it would prevent them from accepting responsibility if and when military action goes to hell. Congress likes nothing more than plausible deniability. This particular Congress is so weak kneed they are more than willing to give Trump whatever power he wants as long as they can deny knowledge or support - unless everything turns out just peachy.

Forgive my text walled response.

Risky Thicket said:

Evil, I am not equivocating, but concerning Trump's attack on Syria it would have been wise (something I will never accuse Trump of being) to either wait for UN verification of Assad using chemicals in Douma or at the very least Trump should have met with the Senate Foreign Relations Committee and the House Armed Services Committee.

Having secret power that even Congress can't know about that justifies attacking sovereign nations reminds me of Dean Wormer of Faber College putting Delta House on "double secret probation."

Trump is way over his head in **** he brought down on himself. I firmly and honestly believe that Trump is incapable of understanding the likely ramifications of attacking Syria. Certainly Trump was unaware of the secret powers that might have justified his attack. I could be easily convinced that Trump still does not understand the separation of powers and probably has never read the Constitution. In walks John Bolton. Bolton ain't no dummy. He has forgotten more than Donald Trump ever knew. Bolton doesn't give 3 ****s about Trump.

A month ago Trump wanted the US out of Syria and suddenly (coincidentally as Trump and his administration are having the worst week ever, week after week) Trump jumps the gun and decides to take an action that will be meat to his base but not so much to the rest of the nation or the world. Attention - for the moment - is diverted to Syria and what will known as Operation Desert Stormy. His justification? A double secret power so secret Congress can't know about it. I have a big problem with that. I don't think I am the only one.

Note: I have forever advocated nullification of the War Powers Act and a return to the Constitution for a number of reasons. Only Congress has the power to declare war. The President of the United States does not have the power to attack a sovereign nation.

For decades Congress has not had the balls to nullify the War Powers Act because it would prevent them from accepting responsibility if and when military action goes to hell. Congress likes nothing more than plausible deniability. This particular Congress is so weak kneed they are more than willing to give Trump whatever power he wants as long as they can deny knowledge or support - unless everything turns out just peachy.

Forgive my text walled response.

Click to expand...

Risky Thicket:

Forgive? Hell, I applaud a thorough and well thought out response! Thank you, sir!

Cheers.
Evilroddy.

James Madison - 1793:

In no part of the constitution is more wisdom to be found than in the clause which confides the question of war or peace to the legislature, and not to the executive department. Beside the objection to such a mixture of heterogeneous powers: the trust and the temptation would be too great for any one man: not such as nature may offer as the prodigy of many centuries, but such as may be expected in the ordinary successions of magistracy. War is in fact the true nurse of executive aggrandizement. In war a physical force is to be created, and it is the executive will which is to direct it. In war the public treasures are to be unlocked, and it is the executive hand which is to dispense them. In war the honors and emoluments of office are to be multiplied; and it is the executive patronage under which they are to be enjoyed. It is in war, finally, that laurels are to be gathered, and it is the executive brow they are to encircle. The strongest passions, and most dangerous weaknesses of the human breast; ambition, avarice, vanity, the honorable or venial love of fame, are all in conspiracy against the desire and duty of peace.

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From The Pacificus-Helvidius Debates of 1793-1794: Toward the Completion of the American Founding [1793]

Ancient wisdom which ought to be recalled today and well heeded.

Cheers.
Evilroddy.

Roddy, your knowledge of the US system is clearly impressive, but I do believe you (and fearandloathing also) have a few misconceptions about our constitution that I've found now and then among foreign observers of our political system. The idea that the US government is formed out of three, co-equal branches (legislative, executive, judicial) is actually a modern one. It surprises me that political scientists and academics still go around talking about that idea like it was the founders' original intent. It was not. The US government was NOT modeled after that of the UK at the time; it was to be a uniquely "republican" solution to the problems of the time. Its authors felt the most powerful branch of government should be the law MAKERS, not the judges, and not the executive. Congress was supposed to be the central arena of the US Government. The presidency is called executive for a reason (to execute, i.e., "to carry out" and enforce the laws passed by Congress, not to make them.) The "checks and balances" in the government were supposed to come from WITHIN the Congress, not between the Presidency and the Congress (in other words, between the then-appointed Senate and the directly elected House of Representatives.)

Regrettably, power tends to consolidate itself. The president in 2017 is far more powerful than in 1789. Part of this is the need of 20th/21st century peoples to look to a national "leader" of some sort, not a group of them. This is especially true with the rise of the mass media. It's no coincidence that the first president to catapult himself directly into our living rooms, rather than speaking to the people through some sort of intermediaries, was FDR. In my view, mass communications is part of the reason for the increase in presidential power. And it's not just in presidential democracies this is occurring. In parliamentary democracies, the PM used to be a "first among equals" in the cabinet. Today many prime ministers are more like American style presidents in how they present themselves, especially as far as the prestige and influence of their offices. Not because you have an inferior form of government; instead, it's because of the 21st century need of a visible national leader.

However, be that as it may, I think foreign observers often overestimate the President's power. He is the most visible symbol of American power in the world, because he represents all the American People, collectively. For example: the world media reports: "The White House released a statement today....." or "The president made a visit to China this week...." One doesn't often hear news about what the US Congress is up to, at least not as often as you hear about what the President is up to. This greater visibility of the American chief executive allows the 535 members of Congress to fly under the media radar much of the time. Trump has a lot more constraints on him than Mr Trudeau does within Canada, believe it or not. Presidential democracy in America isn't a dictatorial as it seems. Certainly the office has grown like the blob over the past 229 years, but it's not quite as powerful as people imagine. Is it more powerful than it should be? Yes. There are tweaks I would make to the constitution of 1787 if I were given the power to do so, certainly, and some of them would be to reign in his issuance of executive orders, and a more clear budgetary procedure (that involves the president less, and the Congress more).

But that might be an issue for another thread.