Had I made that mistake (or a similar one), I would have simply admitted so.
And it doesn't appear that you followed the link because it contains my counter-argument to what you keep repeating about Congress authorizing action pursuant to the Security Council. So, I'll copy and paste it for you here:
Hosnon: I'm not sure that's accurate.:The full text of Section 6:
"The President is authorized to negotiate a special agreement or agreements with the Security Council which shall be subject to the approval of the Congress by appropriate Act or joint resolution providing for the numbers and types of armed forces, their degree of readiness and general location, and the nature of facilities and assistance, including rights of passage, to be made available to the Security Council on its call for the purpose of maintaining international peace and security in accordance with article 43 of said Charter.
The President shall not be deemed to require the authorization of the Congress to make available to the Security Council on its call in order to take action under article 42 of said Charter and pursuant to such special agreement or agreements the armed forces, facilities, or assistance provided for therein: Provided, That nothing herein contained shall be construed as an authorization to tile President by the Congress to make available to the Security Council for such purpose armed forces, facilities, or assistance in addition to the forces, facilities, and assistance provided for in such special agreement or agreements."
The "special agreement" is not the U.N. Charter itself; that would be circular because the "special agreement" must be "in accordance with article 43" of the U.N. Charter. If the "special agreement" is the U.N. Charter, the language of Section 6 is meaningless.
I read the section as authorizing the President to negotiate an agreement with the Security Council regarding our obligations pursuant to Article 43 of the U.N. Charter. Once that agreement is negotiated, it must then be approved by Congress. If approved, no further authorization from Congress is needed to perform under that agreement.
So - what is the agreement, and has Congress approved it?
SanchoPanza: That makes no sense.:I think you're misreading the charter and the Participation Act. You do not need an Article 43 agreement to take an Article 42 action. Why would you need Congressional authorization for an Article 43 agreement but not an Article 42 action if the two reference the same process? Hell, why would you even need Article 42 in the first place?
They don't relate to the same thing. Article 43 references permanent contributions to a U.N. security force, something along the lines of a standing army of the Security Council. Article 42 references limited peacekeeping actions (should non-military interventions in Article 41 fail or prove insufficient). The Security Council has never invoked Article 43, yet has been using the more limited Article 42 in every multilateral intervention since Korea. This is, generally speaking, a good thing. Article 42 actions are narrow in scope and have specific goals, so there is less of a chance of "mission creep" or a military operation going beyond the scope of the resolution. People nervous about Libya becoming a quagmire should take comfort in this.
The reason why there is a distinction made in the Participation Act between Articles 42 and 43 is because, when it was ratified in 1947, Congress had no idea that the U.N. would come to rely exclusively on the more limited Article 42 actions. So they made it impossible for the President to submit troops to a permanent force without their approval. But in the tradition going all the way back to Jefferson's war against Tripoli, they left ad hoc engagements largely up to the executive under the rationalization that Congress could always curtail them after the fact. The War Powers Resolution of 1973 merely codified this unwritten rule into law and set specific time tables for such engagements (60 days plus an additional 30 for redeployment) as well as establishing reporting requirements that the President must fulfill.
Hosnon: Thanks for the thoughtful reply.:Both provisions of Section 6 use the phrase "special agreement or agreements" (albeit slightly differently, which I think supports my interpretation). The first provision provides that the President is "authorized to negotiate a special agreement or agreements with the Security Council which shall be subject to the approval of the Congress by appropriate Act or joint resolution". The second provision provides that the the President "shall not be deemed to require the authorization of the Congress to make available to the Security Council on its call in order to take action under article 42 of said Charter and pursuant to such special agreement or agreements. (I think we are in agreement that the phrase references the same concept.)
Under either Article 42 or 43, an agreement - approved by Congress - is necessary before any military force can be used. With regard to Libya, what is that agreement?
ETA: What about my post didn't make sense? I did not reference Article 42.
SanchoPanza: I still think you're misreading it.:First, let's look at the full Articles of the UN Charter. I'll include Article 41, because it provides context for Article 42.
Article 41
The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.
Article 42
Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.
Article 43
All Members of the United Nations, in order to contribute to the maintenance of international peace and security, undertake to make available to the Security Council, on its call and in accordance with a special agreement or agreements, armed forces, assistance, and facilities, including rights of passage, necessary for the purpose of maintaining international peace and security.
Such agreement or agreements shall govern the numbers and types of forces, their degree of readiness and general location, and the nature of the facilities and assistance to be provided.
The agreement or agreements shall be negotiated as soon as possible on the initiative of the Security Council. They shall be concluded between the Security Council and Members or between the Security Council and groups of Members and shall be subject to ratification by the signatory states in accordance with their respective constitutional processes.
Taken together, we have the following framework for Security Council actions: 1) The Security Council may pass resolutions calling for non-military interventions in sovereign states for the purpose of peacekeeping. 2) Should those non-military interventions fail, the Security Council has the ability to authorize military intervention by its member states. 3) The Security Council may make special agreements with member states to provide it (meaning the Security Council) with military forces and other assistance should the need arise, and such agreements will be made in accordance with the constitutional processes of member states.
What you're saying is that a "special agreement" under Article 43, which is what the U.N. Participation Act is referencing when it uses the words "special agreement," is necessary for an Article 42 action. I think what you're missing is that Article 42 actions are not taken by the Security Council itself, but that these actions are taken by member states, acting in concert, with authorization of the Security Council. The UN Participation Act says, in laymans terms, that if the President is committing U.S. forces to a military action under Article 42, then Congressional authorization is not needed unless such actions are undertaken using forces granted to the Security Council under Article 43.
And your post didn't make sense because no special agreement under Article 43 has ever been made, at least not with the United States, and that every single U.S. commitment to a military action authorized by the Security Council has been done explicitly and exclusively under article 42. Including Korea. In other words, if you're right, then not only has nearly every President since Truman violated the War Powers Clause, but Congress and the Judiciary has done
absolutely nothing about it for over sixty years. Personally, I find that to be a bit of a stretch.
Hosnon: Let me clarify something regarding my position here:I'm leaning towards the position that this military action is constitutional. However, that opinion is based on the broad military powers given the President by the Constitution. The President's authority to engage in military conflict is limited only by his inability to declare war. The minutes of the Constitutional Convention make it clear that the Founders replaced "make war" with "declare war" so as to give the President broad authority. And that is with regard to "war" - not every military action is a "war", and the President likely has unlimited authority to engage in non-war military actions. Therefore, I do not believe that "every President since Truman violated the War Powers Clause", regardless of compliance with any statute or treaty. (As a side note, the Supreme Court's inaction is deliberate; the Court has willingly bowed out of resolving this kind of issue pursuant to its Political Question Doctrine.)
As for the U.N. Charter, the U.N. Participation Act, and the War Powers Act: none of them can amend the Constitution, including the scope of the President's military power. Absent an amendment to the Constitution, the President's military power remains undiminished.
The large caveat here is that Congress always has the authority to (1) defund the military action and (2) impeach the President. That is why, to me, discussing compliance with any and all treaties and statutes is important. The more consensus the President can achieve, the less likely Congress is to exercise its options to stop him.
He's clearly complied with the U.N. Charter as this military action is pursuant to a resolution from the Security Council. As for the War Powers Act, he's sent the necessary notice (including the "I think I don't have to do this" language). Congress will likely acquiesce, if perhaps only by silence; however, it will affirmatively condone the action if it does to take any steps to defund the military action. And if Congress
does not authorize the military action but the President continues doing what he is doing, Congress' only recourse is one or both of the two options listed above, because the Supreme Court will not resolve the issue. The Supreme Court is not the only arbiter of constitutionality,
especially when it has declined to assume that role. Any issues of constitutionality will be resolved by other means, e.g., impeachment.
Lastly, I'm not convinced that my interpretation of the "special agreement" language is spot on, and I'm not sure yours is either. They both seem to be reasonable interpretations of the text. The only authority I came across was a report prepared for Congress by Richard F. Grimmett, a Specialist in International Security with the Congressional Research Service at the Library of Congress. According to his
report:
For armed actions under Articles 42 and 43 of the United Nations Charter, Section 6 of the U.N. Participation Act authorizes the President to negotiate special agreements with the Security Council “which shall be subject to the approval of the Congress by appropriate Act or joint resolution,” providing for the numbers and types of armed forces and facilities to be made available to the Security Council. Once the agreements have been concluded, further congressional authorization is not necessary, but no such agreements have been concluded.
I haven't read the entire report but his interpretation here agrees with mine. But again, simply because the U.N. Participation Act has not been complied with does not mean, in my opinion, that this military action is unconstitutional. The constitutionality of this is wholly independent of these treaties and statutes. Compliance with them only serves to aid the President politically, which in turn will decrease the chances the military action will be defunded and he will be impeached.
In sum (for clarity's sake), this military action is probably constitutional pursuant to the President's military powers bestowed upon the office by the Constitution. However, Congress holds the purse strings and can impeach the President. Therefore, it is wise to build as large a consensus as possible by complying with treaties and statutes on the subject. But whether he has complied is not ultimately an issue of constitutionality (unless of course, it leads to his impeachment and removal, in which case it is fair to say that his actions were unconstitutional).