In an opening for the peace movement and human rights advocates, President Obama is inviting Congress to draft legislation to “rein in” the executive war-making powers of the presidency, including his own White House. Congressional leaders are mulling over a possible response, proposing revisions in the War Powers Act, even before the November 6 election. Obama seems to be taking seriously that his clandestine drone attacks, targeted assassination policies, military tribunals and detentions, cyber warfare, and Libyan intervention face significant constitutional questions and may violate the War Powers Act.
The ultimate danger the president may wish to avoid is a legacy of having restored an “Imperial Presidency” which tarnished the reputation of several predecessors. Obama made the comments during his October 18 interview with Jon Stewart, a broadcast that reaches the president’s liberal base. Asked by Stewart what regrets he had, the president responded first by mentioning his failure to close Guantanamo and promised he could continue trying. For the first time, Obama said he wanted Congressional help in drafting new “legal architecture" so that he and future presidents are reined in as well.
STEWART: All right, this is a little game I call, “Still or No?” So, you’re the president now. Before when you ran you had certain things that you thought. I wonder if four years as president has in any way changed that.
Okay first one is: We don’t have to trade our values and our ideals for our security.
OBAMA: We don’t.
STEWART: Do you still feel that way?
OBAMA: We don’t. There’s some things that we haven’t gotten done. I still want to close Guantanamo. We haven’t been able to get that through Congress. One of the things we've got to do is put a legal architecture in place and we need congressional help to do that, to make sure that not only am I reined in but any president is reined in terms of some of the decisions that we’re making.
Now, there are some tough trade-offs. I mean, there are times where there are bad folks somewhere on the other side of the world and you got to make a call and it’s not optimal. But, when you look at our track record, what we’ve been able to do is to say we ended the war in Iraq. We’re winding down the war in Afghanistan. We’ve gone after Al Qaeda and its leadership. It’s true that Al Qaeda is still active, at least sort of remnants of it are staging in other parts of north Africa and the Middle East and sometimes you’ve got to make some tough calls, but you can do so in a way that’s consistent with international law and American law.
OBAMA: One thing that I have been absolutely clear about is that America’s security comes first, and the American people need to know exactly how I make decisions when it comes to war, peace, national security and protecting Americans.
The 1973 War Powers Act, passed over the threats of Richard Nixon and considered unconstitutional by subsequent presidents, requires the White House to inform Congress of military action and withdraw American troops from combat in sixty days unless Congress approves the act. While its broad language seems to encompass “war” in many forms, the original act was drafted in response to the Indochina wars. The Obama White House argues that the War Powers Act applies only where there is “sustained fighting,” an “active exchange of fire with hostile forces,” and the deployment of American ground troops. During the Libyan war, the administration kept classified all its internal legal arguments about its constitutional status. A near majority of the Republican-led House demanded that the White House comply with the War Powers Act during the Libyan conflict, revealing a latent sentiment in Congress against ceding more of its decision-making power to the executive branch.
This week, a United Nations Special Rapporteur on human rights and counterterrorism, Ben Emmerson, who has represented Julian Assange in his extradition case, opened a formal investigation into possible violations of international law in the case of drones.
The Peace and Justice Center has listed revising the War Powers Act as a key part of its policy agenda. For further details on drafting a revised War Powers Act, please see the August 3 article at The Huffington Post:
“One possibility is for the president to recognize, without having to backtrack, that his policies have opened a new era of warfare that renders the 1973 War Powers Act all but obsolete. He can be an effective Commander-In-Chief while disavowing a return to an Imperial Presidency.
“The proposal need not be a detailed blueprint, partly because the subject is complex. But the president can pledge to start a conversation about how to enhance the democratic rule of law, the constitutional role of Congressional oversight and consent, and a broader, re-invigorated place for the media and civil society in the process of deciding whether, when and for how long America goes to war.”