Libya War: Constitutional or Not?



You don't look like who you say you are



"Just trust me."

People may accept those words from a spouse or loved one. But when it comes to business, to the parts of our lives that are not experienced under an umbrella of mutual intimacy, people are less trusting. Few would accept those words from someone on the other side of the negotiating table, a used car dealer, a boss or rival at work, or a political leader.

And yet that is what President Obama is asking the US citizenry to do. The President has claimed that he thought very long and hard before committing to intervening in the war against Libya. Well, bully for him. How wonderful that he is a thoughtful, deliberative man.

Problem is as Kucinich and several other political leaders have pointed out, it's not HIS decision to make.

There are three major arguments to make against this war-constitutional, pragmatic and political. I think the constitutional one is the strongest so that is where I will start. I will also briefly address some of the common counterarguments. The one argument that I won't address is that other people did it too. That doesn't work when someone is charged with bank robbery and it shouldn't apply here.

Constitutional

The US Constitution is clear on this. Congress and Congress alone has the power to declare war.

Obama, as a candidate, said this to the Boston Globe.

Q. In what circumstances, if any, would the president have constitutional authority to bomb Iran without seeking a use-of-force authorization from Congress? (Specifically, what about the strategic bombing of suspected nuclear sites -- a situation that does not involve stopping an IMMINENT threat?)

OBAMA: "The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation."

"As Commander-in-Chief, the President does have a duty to protect and defend the United States. In instances of self-defense, the President would be within his constitutional authority to act before advising Congress or seeking its consent."

Of course like many other people, he changed his mind once HE was the person in charge. If we accept this it shows that despite our protestations to the contrary we really don't want a constitutional republic. This is dangerous. A major pillar of this 200 year+ experiment in separation of powers is that war is simply too dangerous and too seductive to be left to just one man.

A cursory glance through history shows us that monarchs, dictators and other autocrats have launched wars for bad reasons. Queen Bigmouth doesn't like it when Duchess Roundheels shows up at the ball in the same dress. Duke Dodohead takes offense when he loses at billiards to King Stinkybottom. Prince Greedygut is personally offended that the Baron Greasythumb is giving refuge to religious heretics that the Prince is repressing. And so wars break out. The people that start these wars are rarely the people doing the fighting or dying. That is a big part of the reason that the Founding Fathers decided that if war was indeed determined to be necessary at the very least the people, via their elected representatives in Congress, should be the ones to say yea or nay.

The President is the Commander-in-Chief of the Armed Forces and does have, in the case of invasion or imminent attack, the ability to defend the nation and do what is necessary to repel the attackers. This is simply not the case with Libya. Libya did not attack the United States nor is it in a state of war with the United States. So for the President of the United States to attack Libya without a Congressional declaration or war or even a fig leaf of a resolution is unconstitutional.

There are two objections to this conclusion (a) the President is acting under UN authority and aegis so that makes it legal and (b) the President still has time to consult with Congress under the War Powers Act so quit your complaining.

The UN argument is unconvincing. Treaties or other international agreements do not replace the US Constitution.

The UNPA (United Nations Participation Act) makes this exceedingly clear

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.

 

In short, Congress still must approve US armed forces being used , whether it is an UN operation or not. As several Congressmen and Congresswomen have heatedly noted, the President consulted with just about everyone EXCEPT Congress. That's just not good enough. If US citizens want the President to have the constitutional authorization to commit troops to UN approved wars without the approval of the US Congress, if they want the UN security council to be a higher authority for the US than the US Congress, they are of course free to propose, fight for and pass a constitutional amendment stating just that. Until then I say Obama's actions are unconstitutional. And yes I would say that about any President.

We joined the UN under extremely specific guidelines designed to ensure the primacy of the US Constitution. The UN Security Council can not be used to do an end-run around possible Congressional opposition. Just because we joined does not indicate acceptance of UN supremacy over US law.

The War Powers Act argument doesn't really hold water either as far I can see. To quote another representative:

"The president has violated the War Powers Resolution," said Rep. Zoe Lofgren, D-San Jose. Lofgren read the 1973 law aloud in a telephone interview from San Jose. It allows three instances when the president can use force: "(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."
"Have any of those things happened?" Lofgren asked.

Pragmatic

No one knows how this war will end. It could be over tomorrow. It could drag on.  I do not pretend to be able to see the future or have any information that the blog readers or blog partners don't have. I do know this though. We don't know who the opposition is. We know that many Libyans-especially those in the opposition- are taking this opportunity to rob, harass, assault or do worse to Black immigrants (legal or not) in Libya. Remember that the current hostility we have with Iran dates back to the 1953 coup. The blowback to that is still going on. The same can be said of the really dumb intervention in the Lebanese civil war of the early eighties. We ought to mind our own business.

Political

It is possible, even likely that the US Congress is just making noise for the sake of making noise. Republicans have generally said Obama waited too long to go to war while several Democrats are rushing to Obama's defense. Congress en masse is disgustingly eager to give away the big decisions to the Executive Branch. But there still a few Congressmen/women with fire in their bellies who will not automatically roll over and fetch just because the President tells them to do so. And depending on how long this war takes, Obama's base may be so disheartened that that they stay home in 2012. 2010 may have been a preview of that. If no matter who you vote for, you get more war then something has gone drastically wrong with our system.

Of all the enemies to public liberty war is, perhaps, the most to be dreaded, because it comprises and develops the germ of every other. War is the parent of armies; from these proceed debts and taxes; and armies, and debts, and taxes are the known instruments for bringing the many under the domination of the few. In war, too, the discretionary power of the Executive is extended; its influence in dealing out offices, honors, and emoluments is multiplied; and all the means of seducing the minds, are added to those of subduing the force, of the people. The same malignant aspect in republicanism may be traced in the inequality of fortunes, and the opportunities of fraud, growing out of a state of war, and in the degeneracy of manners and of morals engendered by both. No nation could preserve its freedom in the midst of continual warfare.

-James Madison

So what's your call? Is this war against Libya constitutional?  Are you bothered that he did not even consult with let alone get permission from Congress? Are you satisfied with Obama's explanation or not? Will your opinion change if this is a quick action ("days not weeks") as the President has said? Do you think any blowback will arrive from this? Do you want more interventions overseas?