The Bush Jr. /Cheney refusal to obtain additional authorization from Congress for this substantial enlargement of U.S. armed forces in Iraq constitutes an impeachable offense under the terms of Article II, Section 4 of the United States Constitution for violating the Constitution’s War Powers Clause and Congress’s own War Powers Resolution
If President Bush Jr. and Vice President Cheney are not stopped immediately by means of impeachment, they could readily set off World War III in the volatile Middle East, Persian Gulf and Central Asia, where two-thirds of the world’s hydrocarbon resources are up for grabs among the United States, Russia, China, and India. The Guns of August indeed.
O n the evening of 10 January 2007 in a nationally televised address to the American people from the White House, President Bush Jr. announced that he was going to “surge” an additional 21,500 U.S. troops into Iraq. Both President Bush Jr. and Vice President Cheney also made it perfectly clear that they would initiate this “surge” against the manifest will of the American people expressed in the U.S. national elections of November 2006 and without obtaining authorization by the U.S. Congress.
Both President Bush Jr. and Vice President Cheney invoked the President’s alleged powers as Commander in Chief of U.S. armed forces under Article II, Section 2, Clause 1 of the U.S. Constitution as authority for their unilaterally determined “surge”. But that provision was put into the Constitution for the purpose of guaranteeing the supremacy of civilian control over the U.S. military establishment . The Constitution made it clear in Article I, Section 8, Clause 11 that only both Houses of the United States Congress acting together had the power “To declare War, grant Letters of Marque and Reprisal, and make rules concerning Captures on Land and Water.” This is popularly known as the War Powers Clause of the U.S. Constitution.
Pursuant to its constitutional power under this War Powers Clause, and acting in order to prevent another Vietnam War, Congress enacted into law the 1973 War Powers Resolution [For full text see Annex below] over the veto by President Richard Nixon, which means that it was adopted by at least a two-thirds favorable vote in both the House and the Senate .
In specific respect to the 10 January 2007 “surge” of 21,500 more U.S. troops to Iraq, the War Powers Resolution explicitly requires that President Bush Jr. obtain additional authorization from Congress before going forward with the “surge,” which he did nonetheless unilaterally. Section 4(a) (3) makes it quite clear that the requirements of the War Powers Resolution are triggered:
“In the absence of a declaration of war [which we do not have for Iraq], in any case in which United States Armed Forces are introduced … (3) in numbers which substantially enlarge United States Armed Forces equipped for combat already located in a foreign nation . . .” [see below]
At the time we had about 132,000 troops in Iraq. Sending in an additional 21,500 troops would “substantially enlarge” those armed forces. Therefore, the Bush Jr. Administration required further authorization from Congress for this euphemistic “surge,” which is really a substantial escalation. The Bush Jr. /Cheney refusal to obtain additional authorization from Congress for this substantial enlargement of U.S. armed forces in Iraq constitutes an impeachable offense under the terms of Article II, Section 4 of the United States Constitution for violating the Constitution’s War Powers Clause and Congress’s own War Powers Resolution. (Editor: emphasis added)
The same constitutional arguments apply to the Bush Jr. Administration’s proposed substantial enlargement of U.S. armed forces in Afghanistan by one combat brigade of about 3,500 U.S. troops on top of the 21,000 U.S. soldiers already there .
Of course the War Powers Resolution also requires express authorization from the U.S. Congress before the Bush Jr administration can launch a military attack upon Iran, which it is currently threatening and preparing to do.
If President Bush Jr. and Vice President Cheney are not stopped immediately by means of impeachment, they could readily set off World War III in the volatile Middle East, Persian Gulf and Central Asia, where two-thirds of the world’s hydrocarbon resources are up for grabs among the United States, Russia, China, and India. The Guns of August indeed.
Francis A. Boyle is Professor of Law at the University of Illinois. He is author of Foundations of World Order, Duke University Press, The Criminality of Nuclear Deterrence, and Palestine, Palestinians and International Law, by Clarity Press. He can be reached at: [email protected] He is a frequent contributor to Global Research.
ANNEX
Public Law 93-148
93rd Congress, H. J. Res. 542
November 7, 1973
Joint Resolution
Concerning the War Powers of Congress and the President.
Resolved by the Senate and the House of Representatives of the United States of America in Congress assembled,
SHORT TITLE
SECTION 1. This joint resolution may be cited as the “War Powers Resolution”.
PURPOSE AND POLICY
SEC. 2. (a) It is the purpose of this joint resolution to fulfill the intent of the framers of the Constitution of the United States and insure that the collective judgement of both the Congress and the President will apply to the introduction of United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, and to the continued use of such forces in hostilities or in such situations.
(b) Under article I, section 8, of the Constitution, it is specifically provided that the Congress shall have the power to make all laws necessary and proper for carrying into execution, not only its own powers but also all other powers vested by the Constitution in the Government of the United States, or in any department or officer thereof.
(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.
CONSULTATION
SEC. 3. The President in every possible instance shall consult with Congress before introducing United States Armed Forces into hostilities or into situation where imminent involvement in hostilities is clearly indicated by the circumstances, and after every such introduction shall consult regularly with the Congress until United States Armed Forces are no longer engaged in hostilities or have been removed from such situations.
REPORTING
SEC. 4. (a) In the absence of a declaration of war, in any case in which United States Armed Forces are introduced–
(1) into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances;
(2) into the territory, airspace or waters of a foreign nation, while equipped for combat, except for deployments which relate solely to supply, replacement, repair, or training of such forces; or
(3) in numbers which substantially enlarge United States Armed Forces equipped for combat already located in a foreign nation; the president shall submit within 48 hours to the Speaker of the House of Representatives and to the President pro tempore of the Senate a report, in writing, setting forth–
(A) the circumstances necessitating the introduction of United States Armed Forces;
(B) the constitutional and legislative authority under which such introduction took place; and
(C) the estimated scope and duration of the hostilities or involvement.
(b) The President shall provide such other information as the Congress may request in the fulfillment of its constitutional responsibilities with respect to committing the Nation to war and to the use of United States Armed Forces abroad
(c) Whenever United States Armed Forces are introduced into hostilities or into any situation described in subsection (a) of this section, the President shall, so long as such armed forces continue to be engaged in such hostilities or situation, report to the Congress periodically on the status of such hostilities or situation as well as on the scope and duration of such hostilities or situation, but in no event shall he report to the Congress less often than once every six months.
CONGRESSIONAL ACTION
SEC. 5. (a) Each report submitted pursuant to section 4(a)(1) shall be transmitted to the Speaker of the House of Representatives and to the President pro tempore of the Senate on the same calendar day. Each report so transmitted shall be referred to the Committee on Foreign Affairs of the House of Representatives and to the Committee on Foreign Relations of the Senate for appropriate action. If, when the report is transmitted, the Congress has adjourned sine die or has adjourned for any period in excess of three calendar days, the Speaker of the House of Representatives and the President pro tempore of the Senate, if they deem it advisable (or if petitioned by at least 30 percent of the membership of their respective Houses) shall jointly request the President to convene Congress in order that it may consider the report and take appropriate action pursuant to this section.
(b) Within sixty calendar days after a report is submitted or is required to be submitted pursuant to section 4(a)(1), whichever is earlier, the President shall terminate any use of United States Armed Forces with respect to which such report was submitted (or required to be submitted), unless the Congress (1) has declared war or has enacted a specific authorization for such use of United States Armed Forces, (2) has extended by law such sixty-day period, or (3) is physically unable to meet as a result of an armed attack upon the United States. Such sixty-day period shall be extended for not more than an additional thirty days if the President determines and certifies to the Congress in writing that unavoidable military necessity respecting the safety of United States Armed Forces requires the continued use of such armed forces in the course of bringing about a prompt removal of such forces.
(c) Notwithstanding subsection (b), at any time that United States Armed Forces are engaged in hostilities outside the territory of the United States, its possessions and territories without a declaration of war or specific statutory authorization, such forces shall be removed by the President if the Congress so directs by concurrent resolution.
CONGRESSIONAL PRIORITY PROCEDURES FOR JOINT RESOLUTION OR BILL
SEC. 6. (a) Any joint resolution or bill introduced pursuant to section 5(b) at least thirty calendar days before the expiration of the sixty-day period specified in such section shall be referred to the Committee on Foreign Affairs of the House of Representatives or the Committee on Foreign Relations of the Senate, as the case may be, and such committee shall report one such joint resolution or bill, together with its recommendations, not later than twenty-four calendar days before the expiration of the sixty-day period specified in such section, unless such House shall otherwise determine by the yeas and nays.
(b) Any joint resolution or bill so reported shall become the pending business of the House in question (in the case of the Senate the time for debate shall be equally divided between the proponents and the opponents), and shall be voted on within three calendar days thereafter, unless such House shall otherwise determine by yeas and nays.
(c) Such a joint resolution or bill passed by one House shall be referred to the committee of the other House named in subsection (a) and shall be reported out not later than fourteen calendar days before the expiration of the sixty-day period specified in section 5(b). The joint resolution or bill so reported shall become the pending business of the House in question and shall be voted on within three calendar days after it has been reported, unless such House shall otherwise determine by yeas and nays.
(d) In the case of any disagreement between the two Houses of Congress with respect to a joint resolution or bill passed by both Houses, conferees shall be promptly appointed and the committee of conference shall make and file a report with respect to such resolution or bill not later than four calendar days before the expiration of the sixty-day period specified in section 5(b). In the event the conferees are unable to agree within 48 hours, they shall report back to their respective Houses in disagreement. Notwithstanding any rule in either House concerning the printing of conference reports in the Record or concerning any delay in the consideration of such reports, such report shall be acted on by both Houses not later than the expiration of such sixty-day period.
CONGRESSIONAL PRIORITY PROCEDURES FOR CONCURRENT RESOLUTION
SEC. 7. (a) Any concurrent resolution introduced pursuant to section 5(b) at least thirty calendar days before the expiration of the sixty-day period specified in such section shall be referred to the Committee on Foreign Affairs of the House of Representatives or the Committee on Foreign Relations of the Senate, as the case may be, and one such concurrent resolution shall be reported out by such committee together with its recommendations within fifteen calendar days, unless such House shall otherwise determine by the yeas and nays.
(b) Any concurrent resolution so reported shall become the pending business of the House in question (in the case of the Senate the time for debate shall be equally divided between the proponents and the opponents), and shall be voted on within three calendar days thereafter, unless such House shall otherwise determine by yeas and nays.
(c) Such a concurrent resolution passed by one House shall be referred to the committee of the other House named in subsection (a) and shall be reported out by such committee together with its recommendations within fifteen calendar days and shall thereupon become the pending business of such House and shall be voted on within three calendar days after it has been reported, unless such House shall otherwise determine by yeas and nays.
(d) In the case of any disagreement between the two Houses of Congress with respect to a concurrent resolution passed by both Houses, conferees shall be promptly appointed and the committee of conference shall make and file a report with respect to such concurrent resolution within six calendar days after the legislation is referred to the committee of conference. Notwithstanding any rule in either House concerning the printing of conference reports in the Record or concerning any delay in the consideration of such reports, such report shall be acted on by both Houses not later than six calendar days after the conference report is filed. In the event the conferees are unable to agree within 48 hours, they shall report back to their respective Houses in disagreement.
INTERPRETATION OF JOINT RESOLUTION
SEC. 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–
(1) from any provision of law (whether or not in effect before the date of the enactment of this joint resolution), including any provision contained in any appropriation Act, unless such provision specifically authorizes 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; or
(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.
(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.
(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.
(d) Nothing in this joint resolution–
(1) is intended to alter the constitutional authority of the Congress or of the President, or the provision of existing treaties; or
(2) shall be construed as granting any authority to the President with respect to the introduction of United States Armed Forces into hostilities or into situations wherein involvement in hostilities is clearly indicated by the circumstances which authority he would not have had in the absence of this joint resolution.
SEPARABILITY CLAUSE
SEC. 9. If any provision of this joint resolution or the application thereof to any person or circumstance is held invalid, the remainder of the joint resolution and the application of such provision to any other person or circumstance shall not be affected thereby.
EFFECTIVE DATE
SEC. 10. This joint resolution shall take effect on the date of its enactment.
CARL ALBERT
Speaker of the House of Representatives.
JAMES O. EASTLAND
President of the Senate pro tempore.
IN THE HOUSE OF REPRESENTATIVES, U.S.,
November 7, 1973.
The House of Representatives having proceeded to reconsider the resolution (H. J. Res 542) entitled “Joint resolution concerning the war powers of Congress and the President”, returned by the President of the United States with his objections, to the House of Representatives, in which it originated, it was
Resolved, That the said resolution pass, two-thirds of the House of Representatives agreeing to pass the same.
Attest:
W. PAT JENNINGS
Clerk.
I certify that this Joint Resolution originated in the House of Representatives.
W. PAT JENNINGS
Clerk.
IN THE SENATE OF THE UNITED STATES
November 7, 1973
The Senate having proceeded to reconsider the joint resolution (H. J. Res. 542) entitled “Joint resolution concerning the war powers of Congress and the President”, returned by the President of the United States with his objections to the House of Representatives, in which it originate, it was
Resolved, That the said joint resolution pass, two-thirds of the Senators present having voted in the affirmative.
Attest:
FRANCIS R. VALEO
Secretary.
