Presidential History

Is Unauthorized War-making an Impeachable Offense?

Congress must decide if it or the president declares war.

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Editor's Note: This column is reprinted with permission of the Washington Examiner. Click here to read it at that site.

Last week, in a hearing before the Senate Armed Services Committee, Sen. Jeff Sessions, R-Ala., asked Secretary of Defense Leon Panetta, "do you think you can act without Congress to initiate a no-fly zone in Syria?"

Panetta—a former congressman—bobbed, weaved, and waffled: "Our goal would be to seek international permission and we would…come to the Congress and inform you and determine how best to approach this …."

That answer would be "breathtaking to the average American," Sessions declared: you're going to seek "international permission" and then maybe you'll tell Congress what you're doing?

Rep. Walter Jones, R-N.C., apparently found it "breathtaking" as well. On Wednesday, he launched a preemptive strike of his own, in the form of a resolution "expressing the sense of Congress that the use of offensive military force by a president without prior and clear authorization of an Act of Congress constitutes an impeachable high crime and misdemeanor under Article II, Section 4 of the Constitution."

Is unauthorized war-making an impeachable offense? Certainly. As Hamilton explains in "The Federalist," the impeachment power serves as "an essential check in the hands of that body upon encroachments of the executive," aimed at "those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust."

Given the many abuses of public trust committed by presidents over two centuries of constitutional history, isn't it surprising we've only had two and a half presidential impeachments?

(For those keeping score at home. that's Andrew Johnson, Bill Clinton and Richard M. Nixon—who resigned before the articles of impeachment were put before the full House.) Any way you look at it, that's far too few.

In fact, Congress considered impeaching Nixon for waging war without authority. Rep. John Conyers, D-Mich., drafted an article of impeachment based on the secret bombing of Cambodia, charging Nixon with violating his oath of office by ordering "the concealment from the Congress of the facts … concerning the existence, scope and nature of American bombing operations in Cambodia in derogation of the power of the Congress to declare war."

That charge did not make it into the final articles of impeachment, which is too bad. As the House Judiciary Committee's William Hungate, D-Mo., put it at the time: "It's kind of hard to live with yourself when you impeach a guy for tapping telephones and not for making war without authorization."

Alas, Rep. Conyers, who has tried to impeach three Republican presidents for unauthorized war-making, stayed silent in 1999 when Bill Clinton ignored three congressional votes denying him authority to wage war in Kosovo. For Conyers and too many others, illegal wars are OK as long as you like the president who is waging the war.

You can't fairly accuse Jones of similar constitutional hypocrisy. Jones rose to national attention in 2003, when, in a fit of pique over France's refusal to back the Iraq War, he ordered the House cafeteria to rename french fries "Freedom Fries."

But his doubts about the war grew: "I did not vote my conscience and I sent kids to die, and they didn't have to go," he said later. In 2007, Jones tried to set things right by introducing the constitutional War Powers Resolution, which would limit the president to defensive uses of force.

You may look at Jones as a Don Quixote tilting at windmills with a flaccid lance. I see him as somebody armed with a more powerful weapon, the Constitution, and I think he's making an important point: The impeachment power is there for a reason.

Examiner Columnist Gene Healy is a vice president at the Cato Institute and the author of The Cult of the Presidency.

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  1. Precedent says… no.

    1. Precedent says… no.

      And so does the President!

      1. He’s the Precedent President!

        1. That’s unprecedented

          1. It’d be truly unprecedented to un-President the Precedent President whose present presence precedes the presents we receive!

            1. I really like how you said that. lol
              You’re right all the same, that would be out there..might still be a good idea. Buncha fools, on both sides of the playing field IMO

      2. Let me clear: There’s no such thing as an unauthorized war, and so the answer to your question is no.

        1. “Let me clear: There’s no such thing as an unauthorized war*, and so the answer to your question is no.”

          *Except when Team Red does it.

    2. There could only be precedent if someone had tried to impeach a President for unauthorized warmaking, and had failed.

      So, no precedent (as far as I know).

  2. Isn’t war in Libya the first war the US engaged in without any Congressional authorization? Wait, you correctly identified Kosovo and incorrectly mentioned Cambodia.

    1. But it’s not a war without boots on the ground!

      1. Then nobody will mind if I nuke Canada~!

      1. Part of the rationale for Grenada was that 1) there were American med students at St George University there and 2) that the Soviets and Cubans were planning on using an airport under construction on the island to transport weapons to communist guerilla fighters in South America (IOW, American citizens in danger + alleged threat to American interests).

        And according to wikipedia at least there were ~60 advisors from the Soviet Union, North Korea, East Germany, Bulgaria, and Libya on the island. Although that part of the article has a nice “citation needed” marker, so who knows. Also, those advisors were probably all “diplomatic staff”, which means maybe they were intelligence agents, maybe not. Who knows.

        1. I think Richard Marcinko (the founder of Seal Team 6) said it best in his memoirs when he mentioned the American Med Students in Grenada:

          “Americans are going to Medical School there? The fuck were they learning? Witchcraft?”

        2. “”Part of the rationale…””

          There’s always a rationale. The question is are they following the rules. Rationales be damned.

        3. Another part of the rationale was that the Marine Barracks in Beirut had just been bombed on October 23rd, and the U.S. really needed something to distract the populace from the fuck-up. (and subsequent withdrawal from Lebanon.) Hence the Grenada Invasion on October 25th.

          It’s always been “different” when the troops were going to the Caribbean/Latin America. See the Marines in the Dominican in 1965, Nicaragua starting in 1912, etc…

      2. Interestingly, the Congressional Black Caucus apparently did try to get Reagan impeached over Grenada. Interesing how they’ve been completely silent on Obama going into Libya. Typical team politics though.

        wikipedia link: http://en.wikipedia.org/wiki/Invasion_of_Grenada_(1983)

        Damn character limit.

  3. semi-OT: Social Networking Sites and Politics
    http://www.pewinternet.org/Rep…..itics.aspx

    When it comes to SNS users, the internet users who describe their political ideology as moderate or liberal are more likely than conservatives to use social networking sites.

    Liberals are the most likely to have taken each of these steps to block, unfriend, or hide. In all, 28% of liberals have blocked, unfriended, or hidden someone on SNS because of one of these reasons, compared with 16% of conservatives and 14% of moderates.

    1. Because the lefties need to be told what to think in a way that makes them feel good.

      1. Because the fibertarian/conservative right wing nuts need to be told what to think in a way that makes them feel good.

        1. Also – derp

      2. Bah. Left/right, it’s just High School shit. Who’s popular, who’s a nerd, etc.

      3. Or not:

        The cohort is so small that it is not possible to do a statistically reliable analysis of trends. But as a rule, there were no ideological differences among those who had dropped someone from their SNS world because of politics.

        Reading. Too difficult for closet Republicans.

        1. “Reading. Too difficult for closet Republicans.”

          Gets in the way of too much rage…

          1. They sure as fuck ain’t reading those bibles they’re always waving about…

        2. The cohort is so small that it is not possible to do a statistically reliable analysis of trends. But as a rule, there were no ideological differences among those who had dropped someone from their SNS world because of politics.

          Writing. “Too small a sample to be statistically reliable” should not be followed by “there were no ideological differences” in that same too-small sample.

        3. Your sitting here bitching about reading comprehension, yet you fail to register that what he quoted also appeared verbatim in the same article, in an apparent contradiction.

          It’s a good thing you’re too fucking stupid to comprehend irony, Tony.

  4. Endless war…what’s not to love? A truly bipartisan project as events have proven.

    1. “War is a staple of civilization. Its mass, rationalized, chronic presence has increased as civilization has spread and deepened.”

      The Origins of War
      John Zerzan
      http://www.scribd.com/doc/20298938/Ze…..ins-of-War

      1. It’s funny because I’m sure you actually believe that

        1. He has proof! Come on, Godesky. Cite that paper you wrote in undegrad school. You know, the one full of assumptions and over-reaching conjecture. We love it! And it has changed so many minds here.

        2. Come on, Fibertard, cite some Rothbard or Rand!

          1. Why?

        3. such as:

          I Eibl-Eibesfelt, “Aggression in the !Ko-Bushmen,” in Martin A. Nettleship, eds., War, itsCauses and Correlates (The Hague: Mouton, 1975), p. 293.

          W.J. Perry, “The Golden Age,” in The Hibbert Journal XVI (1917), p. 44.

          Arthur Ferrill, The Origins of War from the Stone Age to Alexander the Great (New York:Thames and Hudson, 1985), p. 16.

          Paul Ta?on and Christopher Chippindale, “Australia’s Ancient Warriors: Changing Depictions of Fighting in the Rock Art of Arnhem Land, N.T.,” Cambridge Archaeological Journal 4:2 (1994), p. 211.

          Oh shit, too big of words for Fibertarian?

          1. Oh, great! More assumptions and over-reaching conjecture based on extremely limited evidence! Changing minds all over the plains and forrests, aren’t you?

        4. War only = a staple of civilization because without civilization we call it “feuding” or “raiding” or “skirmishing” or “fighting”.

          WI is right on this point, but it shouldn’t bother us because it isn’t a very interesting point. It’s kind of like saying “written communication = a staple of civilization.” Communication existed before civilization, just not in a large-scale, coordinated way.

      2. White Indian make all of us laugh.

        1. HAHA lol wut huh? derp!

          1. well-referenced articles just confuse Fibertarians

            Maurice R. Davie, The Evolution of War: A Study of Its Role in Early Societies (NewHaven: Yale University Press, 1929), p. 247.

            Harry Holbert Turney-High, Primitive War: Its Practice and Concepts (Columbia:University of South Carolina Press, 1949), p. 229.

            George Bird Grinnell, “Coup and Scalp among the Plains Indians,” American Anthropologist 12 (1910), pp. 296-310. John Stands in Timber and Margot Liberty make thesame point in their Cheyenne Memories (New Haven: Yale University Press, 1967), pp. 61-69. Also, Turney-High, op. cit., pp. 147, 186.

            Ronald R. Glassman, Democracy and Despotism in Primitive Societies, Volume One(Millwood, New York: Associated Faculty Press, 1986), p. 111.

            Put on your thinking caps now, Fibertarians.

            1. If the primitivists wish to dismiss all of history as a decline towards the monolithic ogre of civilisation, then that is of course up to them. What is quite clear, however, is that their movement has no merit either as an abstract critique or as a recipe for revolution. In the former sense, it lacks any significance. In the latter, it is a recipe for misery, suffering, and death.

              http://propertyistheft.wordpre…..imitivism/

      3. Your typical, mid-twenties, overweight, college-educated, 9-to-5, white-collar, suburban, geeky, role-playing computer industry professional, complete with the quiet desperation that I just might spend my whole life like this if I don’t break out and start living like a human being–rewilding, becoming native to a place, finding my tribe and living with the land. I don’t share this out of pride, or because I think I set some good example. Maybe someone can learn from my mistakes. Maybe we can help share some solutions. But mostly, I figure if I can do this, anyone can.

        1. …above a 2nd grade level.

          1. It’s tougher hunting animals when they don’t come in a value meal, Jason.

          2. War Before Civilization: The Myth of the Noble Savage convincingly demonstrates that prehistoric warfare was in fact more deadly, more frequent, and more ruthless than modern war. Keeley cites evidence of ancient massacres in many areas of the world, including the discovery in South Dakota of a prehistoric mass grave containing the remains of over 500 scalped and mutilated men, women, and children (a slaughter that took place a century and a half before the arrival of Columbus). http://www.oup.com/us/catalog/…..0195119121

            1. …at Psychology Today.

              (Pinker is parroting Keeley’s bullshit.)

              Steven Pinker’s Stinker on the Origins of War
              Did Steven Pinker knowingly mislead his audience at TED?
              http://www.psychologytoday.com…..rigins-war

              1. “Did Steven Pinker knowingly mislead his audience at TED?”
                Nope.

                1. why you so mad, bro?

                  1. Arent’ fat guys like you supposed to be jolly? Or is that a result of too much agriculture, too?

                    1. I know Reason loves Pinker’s Statist Gospel.

                      Tuesday, October 18, 2011
                      Steven Pinker’s Statist Gospel
                      http://freedominourtime.blogsp…..ospel.html

              2. Can’t refute writings so moves subject to someone else.

          3. If the primitivists wish to dismiss all of history as a decline towards the monolithic ogre of civilisation, then that is of course up to them. What is quite clear, however, is that their movement has no merit either as an abstract critique or as a recipe for revolution. In the former sense, it lacks any significance. In the latter, it is a recipe for misery, suffering, and death.

            http://propertyistheft.wordpre…..imitivism/

      4. War Before Civilization: The Myth of the Noble Savage convincingly demonstrates that prehistoric warfare was in fact more deadly, more frequent, and more ruthless than modern war. Keeley cites evidence of ancient massacres in many areas of the world, including the discovery in South Dakota of a prehistoric mass grave containing the remains of over 500 scalped and mutilated men, women, and children (a slaughter that took place a century and a half before the arrival of Columbus). http://www.oup.com/us/catalog/…..0195119121

        1. …at Psychology Today.

          (Pinker is parroting Keeley’s bullshit.)

          Steven Pinker’s Stinker on the Origins of War
          Did Steven Pinker knowingly mislead his audience at TED?
          http://www.psychologytoday.com…..rigins-war

          1. “Did Steven Pinker knowingly mislead his audience at TED?”
            Nope.

            1. why you so mad, bro?

              1. Don’t get mad. Get help.

        2. I know Reason loves Pinker’s Statist Gospel.

          Tuesday, October 18, 2011
          Steven Pinker’s Statist Gospel
          http://freedominourtime.blogsp…..ospel.html

          1. Keely is not Pinker. Can’t refute writings so moves subject to someone else.

          2. If the primitivists wish to dismiss all of history as a decline towards the monolithic ogre of civilisation, then that is of course up to them. What is quite clear, however, is that their movement has no merit either as an abstract critique or as a recipe for revolution. In the former sense, it lacks any significance. In the latter, it is a recipe for misery, suffering, and death.

            http://propertyistheft.wordpre…..imitivism/

      5. If the primitivists wish to dismiss all of history as a decline towards the monolithic ogre of civilisation, then that is of course up to them. What is quite clear, however, is that their movement has no merit either as an abstract critique or as a recipe for revolution. In the former sense, it lacks any significance. In the latter, it is a recipe for misery, suffering, and death.

        http://propertyistheft.wordpre…..imitivism/

        1. . . . so you cite a source which is every bit as whackjob as the primitivists?

  5. It’s only impeachable if your team controls the House.

    And you can only get a conviction if your team controls the Senate.

  6. Is unauthorized war-making an impeachable offense?

    Ike – “Huh?”
    JFK – “Wha…?”
    Johnson – “‘scuse me?”
    Nixon – “Pardon?”
    Ford – *falls down stairs*
    Carter – “Turn down the thermostat…for teh children.”
    Bush the First – “Sad Damn Hussein – UN approval, Congressional authorization – wouldn’t be prudent not to get that.”
    Clinton – “Oh, yeah, that’s it…I mean, what?”
    Bush The Lesser – “Heh heh heh – don’t mess with Texas!”
    Obama – HAHAHAHAHAHAHAHAHAHAHAHAHA!!!!

    1. Shorter Me: “No”

      1. so Reagan gets a pass. Granted, Grenada was not a massive undertaking but if it’s a principle we’re discussing….

        1. Not to mention Iran-Contra.

          1. Iran-Contra wasn’t a war.

    2. You missed one.

  7. Sure, it’s impeachable. But it won’t be and it hasn’t been. Why? Because Congress sucks and extra sucks in standing up for its prerogatives. Which has damaged our whole system of checks and balances remarkably.

    1. As a practical matter, for Congress to be inclined to go so far as to impeach over such a thing, the following would have to be true:

      1) Congress and the President would have to be in serious conflict generally — probably requiring that the majority party in Congress be different from the President’s.

      2) The President would have had to have done his war-making without any kind of “fig leaf”, such as Dubya’s blank check from Congress for action against Iraq.

      3) The war-making would have to have been an unspinnably egregious disaster — probably worse than Iraq. Something like Obama’s Libyan bombing campaign, or Clinton’s in the Balkans, could probably never rack up a big enough US body count or enough diplomatic blowback to qualify.

  8. this debate is no more than an academic exercise. For it to have weight depends on a Congress made up of people more concerned about what’s right than with:
    1) photo ops
    2) re-election (which should #1 – etc)
    3) staying around long enough to get plum committee chairmanships
    4) getting invited to the cool parties
    5) being perceived as important rather than exposed as feckless and venal

  9. “Congress must decide if it or the president declares war.”

    No, it mustn’t. The Constitution does not grant the Congress the power to delegate its war-making powers unto the executive branch.

    Also:

    Article 2, Section 4: “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other High crimes and Misdemeanors.”

    I’d say usurping the declaratory power of the Congress and waging war illegally is treason. And guess what the appropriate punishment for treason is.

    1. *authority.

    2. Constitution Ghost Dance
      Bring back the Golden Past.

      “CONSTITUTIONALISM”: THE WHITE MAN’S GHOST DANCE
      by Robert C. Black
      http://www.spunk.org/texts/writers/black/sp001650.html

      1. War Before Civilization: The Myth of the Noble Savage convincingly demonstrates that prehistoric warfare was in fact more deadly, more frequent, and more ruthless than modern war. Keeley cites evidence of ancient massacres in many areas of the world, including the discovery in South Dakota of a prehistoric mass grave containing the remains of over 500 scalped and mutilated men, women, and children (a slaughter that took place a century and a half before the arrival of Columbus). http://www.oup.com/us/catalog/…..0195119121

  10. So what Congress should do is pass a declaration unambiguously stating that only Congress can authorize military action, reaffirming the War Powers Act deadline of 60 days for the president to get such authorization after initating military action against a country. If Obama ignores this when he takes us into Syria than they can start the impeachment process. They should also make drone warfare subject to Congressional oversight and that such hearings be made publically availible.

    1. Or they could start it now, with the Senate them trying him for treason against the United. Of course, that’s what a decent Congress would do, and practically, your recommendation would work better, but you’re still assuming the Congress gives a shit, which I haven’t seen evidence to suggest.

      1. *Then. Must proof-read. *United States.

      2. Kukinich led such an effort during the Libya thing, but could not get the votes…

        1. Both sides like war too much to punish either side for carrying it out.

          Democrats: Ignore it because it’s our guy.

          Republicans: Complain about it for political points but leave it at that because we want to be able to bomb the shit out of Iran next term and we might not win the Senate.

          1. We should never forget how terrible a war with Iran would be.

            Right now our gas prices are shooting up at the SUGGESTION of such a thing. Just think what is going to happen if Romney, Santorum or even to a lesser degree Obama do what they say regarding Iran.

        2. That’s the one thing about Kucinich I will miss. He at least put his principles before his party.

          1. Indeed.

            Now I wish he’d put his wife before me.

    2. Too soft (since we’re fantasizing).

      Congress should pass a resolution (no need for a law), clarifying the following:

      (1) The President is authorized to take military action in response to a direct attack only for so long as it takes for Congress to convene and vote on a declaration of war, with an outside time limit of one (1) week.

      (2) Any direct use of military force against the government of a foreign nation is war-making that requires a declaration of war.

      (3) The indirect support of war-making, such as by supplying arms and ammunition or logistical support, is war-making that requires a declaration of war.

      (4) Congress has to approve any war-making activities specifically, regardless of treaties or other international agreements.

      (5) Exceptions are limited to (a) anti-piracy actions and (b) the rescue of American citizens in imminent danger of death or serious harm.

      1. Strengthen (4), and you’ve got yourself some really good stuff going.

        Here’s my variant of it:

        (4) Congress has to approve any war-making activities specifically, and no international treaties, conventions, or any other agreements of any sort whatsoever shall be permitted to affect in any way the government of war-making activities by the Congress.

        1. What does the Constitution say about treaties though? If I remember right they are supposed to be the supreme law of the land aside from the Constitution itself. It would be up to the Senate to simply reject a treaty that infringed upon Congressional power to make war, otherwise they would have to pass a Constitutional amendment to that effect.

          1. If I remember right they are supposed to be the supreme law of the land aside from the Constitution itself.

            The Supremacy Clause:

            This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.

            Says only that the Constitution, treaties, and federal law are supreme over state law. Treaties are valid only to the extent they are consistent with the Constitution (“made, or which shall be made, under the authority of the United States,”), as is federal law (“which shall be made in pursuance thereof”).

            One Constitution to rule them all, one Constitution to bind them.

            1. Why the fuck do you have to be so quick? You violently usurped my power to post first. What say you in defense, Mr. Dean?

              1. Mavis Beacon?

              2. Ladies and gentlemen of the jury, my defense:

                Suck it, RPA.

                1. Shit just GOT REAL.

      2. The sad thing is there should be no need for this, it already limits war in the Constitution!

        I’d likely vote for this, but how would you define “anti-piracy” actions?

        1. Actions against pirates? Piracy is reasonably well-defined in the law of nations.

        2. how would you define “anti-piracy” actions?

          Something involving the terms “high-seas” and “internet”, I’m sure.

          1. A reference to “applicable maritime law” should suffice. It should be worded to leave no doubt that we’re talking about piracy on “the high seas”, not internet piracy. Otherwise we’d end up giving the president the authority to make “cyber war” with file sharing sites. Or to physically bomb their servers.

            1. Or to physically bomb their servers.

              That would be just the start, we’d soon have SEAL Teams raiding every free WiFi equipped coffee house within a ten mile radius of a college!

              1. Yeah the wording is very poor imo. Congress needs Constitutional approval for everything, because Congress is corrupt.

    3. If the wording in the Constitution isn’t a sufficient basis for impeachment, what in God’s name makes you think some piss-ant ‘declaration’ is?? It seems self-evident that any violation of the Constitution by a President is a ‘high crime and misdemeanor’ sufficient to justify impeachment and removal from office. Treason doesn’t apply as the Constitution defines that offense as “…waging war against the United States or providing aid and comfort to those who do so…” (paraphrase; sorry). Ordering military action against another country without a declaration of war isn’t treason.

  11. I like that after decades of calling the War Powers Act an ugly hag conservatives have suddenly now declared what a beautiful babe the ol’ gal is now.

    1. Try harder.

      1. On which part? Do you want to dispute that conservatives have criticized the WaPowers act for decades as an undue restraint on the constitutional powers of the President?

        1. And Democrats used to oppose anti-lynching laws and integration. But then as I’m sure you’ll remind us, party’s do tend to shift in their ideaology.

          1. Well, there’s a few more decades in there, and the GOP has actually not come around to support the War Powers act, as the House votes showed.

            But, nice try!

  12. Is Unauthorized War-making an Impeachable Offense?

    Short Answer: Of course it is.

    Long Answer: It’s only illegal if someone with “authority” is willing to catch, prosecute, convict and punish you. So… not really.

    1. Of course it’s impeachable, in my fantasy.

      1. In my fantasy, the lead prosecutor is that babe from “Lollipop Chainsaw”!

        1. Yes, go on . . . .

          1. The game’s not out yet; I’ve only seen trailers of her in a little cheerleader outfit while she pole dances with a chainsaw in a room full of zombies!

            Naturally, I’m starting to fall in love with the tart…

  13. It should be obvious to everyone here, regardless of party affiliation (or lack thereof), that whether unauthorized warmaking is impeachable or not (I say it is) no president will ever be impeached for it.

    So we can dispense with the fairy-tale notion that we are living in anything but a totalitarian state or that the so-called elections mean jack shit.

    1. So we can dispense with the fairy-tale notion that anybody gives a shit about the Constitution anymore.

  14. Come on, the only reason a Congress critter would try to impeach a president for committing military resources to a fight is if the president is on the other team.

  15. “Congress must decide if it or the president declares war.”
    Congress abdicated it’s
    responsibility long ago.

  16. It is hard to be sympathetic to the Catholic church over the abortifacient mandate because they rooted for Obamacare. Still, they must be defended.

    In the same way, a nutless congress is hard to sympathize with after they have worked so hard to make themselves irrelevant and let the executive run away with power. Still, we must defend them. After we whip their ass that is.

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